ramadhan said omary vs the republic 2023 tzhc 18299 22 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF SONGEA AT SONGEA CRIMINAL APPEAL NO. 23 OF 2023 RAMADHAN SAID OMARY....... ..... ......... APPELLANT VERSUS THE REPUBLIC............. ....................................... RESPONDENT (Originating from the decision of the District Court of Namtumbo at Namtumbo in Criminal Case No. 24 of 2023) JUDGMENT 20th and 22nd June, 2023 KISANYA, J,: In the District Court of Namtumbo at Namtumbo in Criminal Case No. 24 of 2023, the appellant was charged with offences of abduction, contrary to section 133 of the Penal Code, Cap. 16, R.E. 2022; and rape, contrary to section 130(l)(2)(e) and 131(1) of the Penal Code (supra). The particulars of offence of the first count were that, on diverse dates between January and April, 2023 at Manyingu Guest House area within Namtumbo District in Ruvuma Region, the appellant did take away AAA (name withheld to disguise her identity) with intent to have sexual intercourse. As for the second count of rape, it was alleged that, on the i dates and place stated in the first count, the appellant did have sexual intercourse with AAA, a girl aged fourteen years. On 13th April, 2023, the charge was read over to the appellant. He pleaded as follows on the first count of abduction: "It is true that I did take away her and lived with her at Manyingu Guest house. With regards the second count of rape, the appellant's plea was as follows: "It is true that I had sexuai intercourse with that girt" Following the said pleas, the prosecution read over the facts to the appellant. For clarity, I shall reproduce the facts read by the public prosecutor as hereunder: "P/PROSECUTOR - An accused is Ramadhani Said Omary, 18 years old, Muslim, peasant of Ushirika, Namtumbo - On diverse dates of January and April, 2023, an accused was at Namanyigu Guest house area within Namtumbo District in Ruvuma. 2 - As per fact above an accused did take the said gid to the Namanyigu Guest House for intent to have sexual intercourse with her. - On diverse date and piace as per second fact, an accused did have sexual intercourse with the said gid aged 14 years old. - On 11/4/2023 at Namanyigu Guest house at Namtumbo District in Ruvuma region, an accused was arrested and brought at Namtumbo police station for interrogation. - An accused was interrogated by police officer G.7068 D/CPL Lugiga whereas confessed to have committed the offices (sic) Upon being invited to respond to those facts, the appellant told the trial court as follows: "AH facts stated by the P/prosecutor are true and correct." Thereafter, the prosecution tendered the PF3 which was admitted as Exhibit Pl. The appellant was thus, convicted as charged and sentenced to serve one year imprisonment on the first count and thirty years imprisonment on the second count. 3 Undaunted, the appellant has filed this appeal premising it on three grounds of appeal. This Court is of the view that the grounds are based on two complaints as follows: One, the trial court failed to determine that the appellant was a child of 16 years old. Two, the trial court convicted the appellant on a plea which was equivocal. During the hearing of the appeal, the appellant appeared in person, unrepresented, whilst the respondent was represented by Ms. Tumpale Laurence, Mr. Madunda Mhina, Mr. Alfred Maige and Mr. James Robby, all State Attorneys. Submitting in support of the appeal the appellant faulted the trial court for failing to consider that he was 16 years old. It was his further submission that his plea was equivocal. Although the appellant did not expound his argument, the petition of appeal shows that this ground is based on the reasons that, the technical terms of both offences were not explained to him, the facts were at variance with the charge sheet on the place where the offence was committed, and some of the ingredients of the offence of abduction were not stated. With that brief submission, the appellant urged this Court to allow the appeal. 4 In his reply, Mr. Maige submitted that the first complaint on the appellants age was an afterthought. He premised his submission on the ground that the appellant did not dispute the facts read by the prosecution which indicated among others, that he was 18 years old. On that account, the learned State Attorney implored this Court to dismiss the first complaint. Reacting to the second complaint, Mr. Maige conceded that the facts which were read after entering a plea of guilty did not disclose all ingredients of the first count of abduction. That being the case, he was of the view that the appellant's plea on the first count was equivocal. On the way forward, the learned State Attorney submitted that there was no need of considering the legality of sentence on both counts. He held the view and urged me to nullify the proceedings, quash the conviction and sentence on both counts. On the way forward, Mr. Maige asked this Court to remit the case file to the trial court with directions that a fresh plea be taken according to law. To cement the submissions made by his learned brother, Mr. Mhina referred this Court to the case of Sokone Mtahali @Chimongwa vs R, Criminal Appeal No. 450 of 2018 (unreported). 5 The appellant had nothing to submit in his rejoinder. Having considered the submissions made by both sides, I find it apposite to start the deliberation on the merit of this appeal, with the second complaint. In their respective submission both parties were at one that, the appellant was convicted on a plea which was equivocal. The law is settled on what amounts to unequivocal plea and thus valid plea of guilty. For stance, in the case of Michael Adrian Chaki vs R, Criminal Appeal No. 399 of 2017 (unreported), the Court of Appeal underlined that: "... there cannot bean unequivocal plea on which a valid conviction may be founded unless these conditions are conjunctively met:- 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 6 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 of the offence. This is in terms of section 228(1) of the CPA. 4. The facts adduced after recording a piea of guilty should disclose and establish all the elements of the offence charged. 5. The accused must be asked to plead and must actually plead guilty to each and every Ingredient of the offence charged and the same must be properly recorded and must be dear (see Akbarali Damji vs R. 2 TLR137 cited by the Court in Thuway Akonaay vs Republic [1987] T.L.R. 92); 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 ofthe offence charged” [Emphasis added]. The above stated conditions have been considered in a number of cases including the case of Sokone Mtahali @Chimongwa vs R, (supra) referred to this Court by Mr. Mhina. 7 In the instant appeal, the second complaint is to the effect that he did not plead guilty to the facts constituting the offences in the charge. In other words, appellant contends that the fourth, fifth and sixth conditions for unequivocal plea of guilty were not complied with. As stated earlier, the first count of abduction was stated to have been committed under section 133 of the Penal Code. Pursuant to the said provision, one of the ingredients of the offence of abduction is that, the accused person takes away or detains a woman against her will. Such fact is missing in the facts read over to the accused person. Since the facts adduced after recording a plea of guilty did not disclose and establish all elements of the offence of abduction, the appellant's plea on the first count was equivocal. Further to the above, both counts were to the effect that the offence was committed against AAA (the victim). I was also stated in the second count that AAA was a girl aged 14 years. Now, the names of the victim was not stated in the facts read over to the appellant. In that regard, it was not safe to arrive at a finding that the appellant admitted to have committed 8 both offences against AAA whose names feature in the charge laid against him. Furthermore, it was stated in the particulars of the offence that, both offences were committed on diverse dates of January and April, 2023 at Manyigu Guest house area within Namtumbo District. However, as rightly pointed out by the appellant, the facts adduced by the prosecution indicated that the offences were committed at Namanyigu Guest House area. In the case of Michael Adrian Chaki (supra), it was held that the facts narrated by the prosecution are in lieu of evidence that would be required to be given during trial in order to prove the charge beyond reasonable doubt. In that regard, the stated variance on the place where the offence was committed implies that the facts adduced by the prosecution did not prove the particulars of the charge levelled against the appellant. For the foresaid reasons, I find merit in the second complaint and hold that the appellant's plea of guilty on each count was equivocal. This ground is in my view, sufficient to dispose of the appeal. Therefore, I will not consider the first complaint on the appellant's age. 9 As to the way forward, with Mr. Maige implored the Court to nullify the conviction, set aside the sentence remit the case file to the trial court for taking plea afresh. It is trite law a conviction based on an equivocal plea is an unsound conviction in law and that the proper recourse is to quash it, set aside the sentence and ordinary, make an order for taking plea afresh [See the case of Julius Charles @ Sharabaro vs R, Criminal Appeal No. 167 OF 2017, CAT at Dodoma (unreported). I have considered that, In terms of the record and facts read by the prosecution, the offence was committed when the appellant was 18 years old. Since the prosecution stated that the appellant had no criminal record, the sentence to be imposed after taking plea afresh or full trial is corporal punishment only. This pursuant to section 131(2)(a) of the Penal Code (supra). Considering that the appellant has been in prison for two months and seven days serving illegal sentence of imprisonment, I find it not appropriate to direct the trial court to take plea afresh. In the final analysis, I allow the appeal and proceed to nullify the proceedings of the trial court on plea of guilty, quash the conviction thereon and set aside the sentences meted upon the appellant on both io counts. I order his immediate release from prison, unless he is detained there for some other lawful cause. It is so ordered. DATED at Sj is 22nd day of June, 2023. z S.E. KISANYA * JUDGE Court: Judgrffent delivered this 22 day of June, 2023 in the presence of the appellant and Mr. Madunda Mhina together with Ms. Lucia Bukuku learned State Attorneys for the respondent. Right of appeal explained. F5— S.E. KISANYA JUDGE 22/06/2023 11