nebo emmanuel vs dpp 2022 tzca 28 16 february 2022

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MKUYE. J.A.. GALEBA, J.A.. And KIHWELO. J.A.^ CRIMINAL APPEAL NO. 173 OF 2019 NEBO EMMANUEL..................................................................... APPELLANT VERSUS DPP.................................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania, at Mbeya) (Ndunguru, J.) dated the 15th day of April, 2019 in Criminal Appeal No. 52 of 2018 JUDGMENT OF THE COURT 7th & 16th February, 2022 GALEBA, J.A.: In this appeal, Nebo Emmanuel, the appellant was charged before the District Court of Rungwe at Tukuyu in Criminal Case No. 55 of 2015 on a single count of rape contrary to sections 130(2)(e) and 131(1) of the Penal Code [Cap 16 R.E. 2002], now [R.E. 2019] (the Penal Code). The substance of the charge before the District Court, in brief, was that on 2nd June 2015, around 12.00 noon at Mpandapanda Village in Rungwe District within Mbeya Region, the appellant had carnal knowledge of a young girl aged 11, who, for purposes of concealing her identity we will refer to her as ABC, or the victim. On 18th June 2015, when the appellant was arraigned in court for the first time and the charge read over to him, he pleaded guilty to the charge. He was accordingly convicted on that very plea of guilty and was consequently sentenced to thirty years imprisonment. The appellant was aggrieved and lodged an appeal to the High Court to challenge the decision of the District Court. Nonetheless, his appeal was not successful, for it was dismissed by Ndunguru J, on 15th April 2019. He has therefore preferred this appeal contesting the decision of the High Court, predicating it on four grounds which we can paraphrase as follows: One that the High Court erred in law when it believed that the trial court ensured that when the charge was read over to him, the appellant understood all the ingredients of the offence. Two, that the High Court erred in law in failing to fault the District Court which did not appreciate the fact that the appellant was not conversant in Kiswahili and therefore provide an interpreter of Kiswahili to Nyakyusa, before he could plead to the charge. Three, the High Court failed to appreciate that the trial before the District Court was unfair as the plea entered was equivocal; and four, the High Court erred in law, for it failed to make a finding that before the 2 District Court, the case against the appellant was not proved beyond reasonable doubt. At the hearing of the appeal, the appellant appeared in person without legal representation. He beseeched us to adopt his grounds and consider them in support of the appeal. He also preferred Ms. Rosemary Mgenyi, the learned State Attorney who was appearing for the respondent, Director of Public Prosecutions, to address the Court on his grounds first, so that he could rejoin should the need to do so arise. Ms. Mgenyi, who, at the outset informed us that she was not supporting the appeal, was both brief and focused. She argued in opposing the grounds of appeal in two clusters. The first was composed of grounds 1 and 2, and the second, grounds 3 and 4. In challenging the first and second grounds, she submitted that when the charge and the facts constituting the ingredients of the offence of rape were read over to the accused for him to plead, he unambiguously, pleaded guilty to the charge and admitted the relevant facts as per the proceedings at pages 3 and 4 of the record of appeal. She submitted further that when the appellant was given an opportunity to elaborate on what happened on the material date, he clearly narrated the entire story of 3 how he raped the girl. She contended that the issue of not being conversant in Kiswahili, is an afterthought because, had that been the case, he could have informed the District Court that he does not have good command or understanding of the language, in which case the court would have sought an interpreter for him. We have keenly considered the two grounds of appeal and the submission of the learned State Attorney in the context of the proceedings as recorded in the record of appeal before us and we think the issue before us in resolving these two grounds is whether the appellant's plea was unequivocal. To appreciate our discussion, we propose first to quote the relevant text from the proceedings of 18th June 2015, the day on which the disputed plea was recorded. The following is the relevant part of the record "Date 18.6.2015 Coram: A. V. Tarimo - DRM P.P.: Assistant Inspector Patrick Accused: Present C.C: Rebecca PP: This is a fresh case I pray to read the charge to the accused. Court: Charge read over and explained to the accused in the language he understood and asked to plead thereto. Accused: It is true. Court: Accused entered plea o f guilty to the charge. Sgn. A. V. Tarimo - DRM 18.06.2015." After the court had entered a plea of guilty, it required the prosecution to read the facts of the case to the accused, which the prosecution did. The facts which were read and admitted, are the following: - " 1. That the name and persona! particulars o f the accused is as per the charge sheet. 2. That accused is a barber at Soweto Kiwira. 3. That on 2ndJune, 2015 at about 12:00 accused was at Soweto Kiwira. 4. That on the above-mentioned date, place and time accused took ABC, a girl o f 11 years to his house and had carnal knowledge with her. 5 to 8 (not applicable at the moment) 9. That the victim's mother went to report to Kiwira Police station about the incidence whereby accused was arrested and sent there and later on transferred to Tukuyu Police Station. 10. While the accused was at the Police Station, he admitted to commit the alleged offence and caution statement was taken to that effect. Later on the charge 5 was prepared and the accused was arraigned before this court today." After admitting the above facts, the court gave the appellant an opportunity to make any comments he could have before the court was to convict him and hand down a deserving sentence. This is what the appellant stated: - "Your honour I admit that I had carnai knowledge with the child ABC after she agreed to have sex with me. I did not force. We agreed each other and went to my father's house where I started to make love with her. Also I want to make dear to this court that, since we agreed with the child to have carnai knowledge, I did not use any means for forcing her nor threatening. That is why I denied the fact concerning the issue that I threated to kill the child in case she yells. The time I was doing the act (having sex with the victim) my wife came and found us making love. She was very shocked and she told me that she is going to report to Police Station. After the child heard that she ran away....Later on I was arrested." According to the record above, the appellant pleaded guilty not only to the charge but also to facts 1, 2, 3, 4, 9 and 10. To cap it all, after admitting the facts, when asked to comment, the appellant narrated very clearly how the incidence took place. He did so in very clear terms, in details and with minute precision of what actually happened from how it all started to the end. The appellant was able to explain even how the rape was interrupted midway by his own wife, who found him in fagrante delicto, at the very middle of the crime. In law, for a plea of guilty to be valid for purposes of conviction without trial under section 228(2) of the Criminal Procedure Act [Cap 20 R.E. 2019] (the CPA), it must meet the conditions that this Court set in the case of Michael Adrian Chaki v. R, Criminal Appeal No. 399 of 2017 (unreported). In that case the Court stated that there cannot be an unequivocal plea on which a valid conviction may be founded unless these conditions conjunctively exist: - "1. The appellant must be arraigned on a proper charge. That is to say, the offence, section and the particulars thereof must be properly framed and must explicitly disclose the offence known to law; 2. The court must satisfy itself without any doubt and must be dear in its mind, that an accused fully comprehends what he is actually faced with, otherwise injustice may result. 3. When the accused is called upon to plead to the charge, the charge is stated and fully explained to him before he is asked to state whether he admits or denies each and every particular ingredient o f the offence. This is in terms of section 228(1) o f the CPA. 4. The facts adduced after recording a plea o f guilty should disclose and establish all the elements o f the offence charged. 5. The accused must be asked to plead and must actually plead guilty to each and every ingredient o f the offence charged and the same must be properly recorded and must be dear. 6. Before a conviction on a piea of guilty is entered, the court must satisfy itself without any doubt that the facts adduced disclose or establish all the elements o f the offence charged". This Court set the above conditions after considering several other decisions including Rex v. Folder (1923) 2 KB 400, Laurent Mpinga v. R, [1983] TLR 166 and Karlos Punda v. R, Criminal Appeal No. 153 of 2005 (unreported) all discussing the same point. 8 With the above clear position, the issue that stands stationary before us for resolution is, did what transpire in court and quoted above meet the criteria set by this Court in the case of Michael Adrian Chaki (supra)?. That will be our focus for the moment. In respect of the charge which in our view, is a valid charge for its validity was not challenged at the High Court and even before us. According to the record, when the charge was read over to the appellant, he unhesitatingly, responded "it is true". After the court had entered a plea of guilty the prosecution recited the facts constituting the offence. Amongst the facts were items 3 and 4 which were to the effect that the appellant had carnal knowledge of ABC, a girl aged 11 years. The appellant signed his admission of the facts at page 6 of the record of appeal. We think however that, this act of signing admitted or disputed facts by an accused on the first day of arraignment was not necessary, because the proceeding was not a preliminary hearing session. Before we leave the 1st and 2nd grounds of appeal, we wish to make one observation. As observed above, some facts were denied. The facts that were denied were; first, that the appellant threated the victim in order to achieve a hassle-free sexual experience; second that soon after the victim left the scene of crime she went home where she was living with 9 her mother; third, that on 13th June 2015 the victim visited her mother who lives in Mbeya to whom she disclosed the tragic sexual assault she had had at the scene of crime, and fourth, that the victim's mother reported the matter to the Police. Although the above points were denied, the same had no relevance to the charge, because none of them constituted an ingredient of the offence of rape. In our view, the fact that the appellant denied or disputed these facts did not at all affect his unequivocal plea in respect of the offence charged. One last issue captured particularly in the 2nd ground of appeal, was that the appellant was not conversant with Kiswahili language, the language that was being used during the proceedings. That complaint has two lose ends. One, the complaint was not raised before the District Court, so that the court could put in place arrangements to procure an interpreter to assist the appellant in order to effectively communicate and follow the proceedings. Two, on the same day the facts were read over to the appellant, he had ability to admit some facts and dispute others. The two facts indicate that the complaint is an afterthought. In view of what we have endevoured to discuss above, we are in agreement with Ms. Mgenyi, that the appellant's plea of guilty was free of incompleteness, imperfection or ambiguousness. The plea of guilty to the 10 charge and the admission to the facts was unequivocal and complete. Accordingly, the resultant conviction and the sentence that followed were both legally sound. In the circumstances, the 1st and 2nd grounds of appeal have no merit, we dismiss them. In respect of grounds 3 and 4, Ms. Mgenyi submitted that the complaints in those grounds are misconceived. She contended that a complaint of unfair trial and that the case was not proved beyond reasonable doubt which are the allegations of the appellant in those grounds can be raised as issues only if there was at all a trial in the first place. In this case, as the appellant admitted the charge at the earliest possible opportunity before a formal trial could start, she argued, the two grounds of appeal have no merit, for there was no trial in this matter. Determination of the above grounds pose no difficulty at all. As submitted by the learned State Attorney, there was no trial in the District Court. Trial could only be possible if the appellant pleaded not guilty to the charge, where the prosecution would be called upon to call witnesses under section 229(1) of the CPA, to prove the case. In this case, as rightly argued by Ms. Mgenyi, there was no trial, in which case issues of unfair trial or proof of the case beyond reasonable doubt would not arise. That said, grounds 3 and 4 are devoid of merit. ii For the foregoing reasons and in view of the observations we have made, we dismiss this appeal for want of merit. DATED at MBEYA, this 14th day of February, 2022 R. K. MKUYE JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL Judgment delivered this 16th day of February, 2022 in the presence of the Appellant in person and Mr. Alex Mwita, learned Senior State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. /V C x\ C. M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL 12