20190215 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA DC CRIMINAL APPEAL NO. 37 OF 2018 (Original Traffic Appeal Case No. 179 of 2017 of the District Court of Dodoma at Dodoma) THE DIRECTOR OF PUBLIC PROSECUTIONS ............ APPELLANT VERSUS LAZARO JAPHET SARUFU DANIEL ZEPHRIN SENDEU .............................RESPONDENTS 2811212018 & 151212019 JUDGMENT MASAJU, J. The Respondents, Lazaro Japhet Sarufu and Daniel Zephrine Sendeu, the 1 and 2nd Respondents respectively, were charged with traffic offences under the Road Traffic Act, [Cap 168] in the District Court of Dodoma at Dodoma. Though the Respondents were together and jointly prosecuted in the trial Court on a single charge sheet, each of them had his own specific Count. The I st Respondent was charged with Driving a Defective Motor vehicle Contrary to section 39 (1) (a) and (5) of the Road Traffic Act, [Cap 168]. The 2nd Respondent was charged with Allowing the use of Defective Motorvehicle Contrary to section 39 (6) (a) (b) and (5) of the Road Traffic Act, [Cap 168]. The Respondents pleaded guilty to their respective counts of offences and they were convicted on their own plea of 1 guilty. The Trial Court, upon the respondents, mitigation, discharged them absolutely under section 38 (1) of the Penal Code, [Cap 1 6]. The Appellant, the Director of Public Prosecutions, was aggrieved with such order, hence this appeal in the Court. The Appellant's Amended Petition of Appeal bears one ground, thus:- "THAT, the trial Court erred in law by sentencing the Respondents with unconditional discharge." In the first place, the Court hereby advises that the order for either absolute or conditional discharge under section 38 (1) of the Penal Code [Cap 16] is not and does not amount to a sentence in terms of section 25 of the Penal Code, [Cap 16] and that is why the offender who defaults conditional discharge order under section 38 (1) of the Penal Code, [Cap 16] will be liable to be sentenced for the original offence as so provided for under section 38 (3) of the Penal Code, [Cap 1 6]. Secondly, the applicability of section 38 of Penal Code, [Cap 16] is not restricted to the offences under the said Penal Code only. As a matter of law and fact, section 5 of the Penal Code, [Cap 16] is categorical that "offence" means an act, attempt or omission punishable by law. Section 3 (1) (a) of the Penal Code, [Cap 16] recognizes such other laws in force in Mainland Tanzania. The wording of section 38 and its clusters, sections 38A and 38B of the Penal Code, [Cap 16] nowhere states that the "offences" referred therein are exclusively the offences under the said Penal Code, [Cap 16] only. That is why section 235 (1) of the Criminal Procedure Act, [Cap 20] guides that the Court, having heard both the complainant and the accused person and their witnesses and the evidence 2 MI shall convict the accused and pass sentence upon or make an order against him according to law or shall acquit or discharge him under section 38 of the Penal Code. According to section 4 of the Criminal Procedure Act, [Cap 20] all offences under the Penal Code shall be inquired into, tried and other wise dealt with according to the Criminal Procedure Act, [Cap 16] and that all offences under any other law shall be inquired into, tried and otherwise dealt with according to the provisions of the Criminal Procedure Act, except where that other law provides differently for the regulation of the manner, on place of investigation into, trial or dealing in any other way with those offences. Since the offences under the Penal Code and such other laws, The Road Traffic Act, [Cap 168] inclusive, are also regulated and otherwise dealt with according to the Crimiiial Procedure Act, [Cap 20], other things being equal, by virtue of section 235 (1) of the CPA, [Cap 20] the order for absolute or conditional discharge under section 38 (1) of the Penal Code, [Cap 16] could be given by the Court in respect of such offences provided the conditions for applicability of the said section in terms of law and facts are met accordingly. Section 38 (1) reads thus: "38 (1) where a Court by or before which a person is convicted of an offence is of opinion having regard to the circumstances induding the nature of the offence and the character of the offender, that it is inexpedient to infl/ct punishment and that probation order is not appropriate, the Court may make an order discharging him absolutely or, if the Court thinks fit, discharging him 3 subject to the condition that he commits no offence during such period, not exceeding twelve months from the date of the order, as may be specified in the order." 28th day of November, 2018, Ms. At hearing of the appeal on the Neema Taji, the learned State Attorney who appeared for the Appellant argued that since the Road Traffic Act, [Cap 168] was self-sufficient in terms creation of the offences and the sentences thereof, it is the said law itself that should have been considered for application instead of invoking section 38 (1) of the Penal Code. In the light of what have already been expounded by the Court herein above, the Appellant cannot be more on the wrong side of reasoning. That is to say, the trial Court so rightly invoked and applied section 38 (1) of the Penal Code, [Cap 16]. For further enlightment one can consider sections 326 (1) (a) and 366 (1) (a) (1) both of the CPA, [Cap 2 0]. That being the case, the Appellant's ground of appeal and the appeal altogether is hereby dismissed for want of merit. Though the Respondents had not appealed against their conviction on the alleged pleas of guilty, by virtue of revisionary powers vested with the Court under section 373 of the CPA, [Cap 20], the Court asked Ms. Neema Taji, the learned State Attorney for the Appellant and Mr. Mselingwa, the learned counsel for the Respondents to address the Court on the plea of guilty by the Respondents on whether or not the pleas were unequivocal. The Appellant advised the Court that the pleas of guty by the Respondents were unequivocal since the charges and the facts of the case that were read over to the Respondents and asked to enter plea and reply 4 '3 established the offences they had been charged with. That, the Respondents were therefore so rightly convicted of the offences against them on their own pleas of guilty. The Respondents advised the Court that the Respondents pleas were not unequivocal hence not worthy of grounding conviction. That, the 2'' Respondent allowed the 1 Respondent to use the defective motor vehicle for purposes of driving it to the Garage for repair. In the first place, the two offences the Respondent's had been charged with, were not strict liability offences. So, fault had to be proved against them in terms of mensrea. In the 1 st Count of (Driving a Defective Motorvehicle Contrary to section 39 (1) (a) and (5) of the Road Traffic Act, [Cap 168], the law requires that no motor vehicles shall be used on the road unless are in good repair. Since the 1s t Respondent was found driving the defective motorvehicle, the facts of the case against him, upon his plea of guilty ought to include the averments that at the time of his arrest he was not driving the defective motor vehicle to the Garage for repair. No wonder in his mitigation of sentence upon conviction of the offence on the allegedly own plea of guilty, the Is t Respondent submitted before the CoUrt that by the time he was arrested he was driving the defective motor vehicle to the Garage for maintenance (repair). That motor vehicle cannot be in good repair if it is not taken to the Auto Garage for repair (maintenance). As regards the 2 nd count (Allowing the Use of Defective Motor vehicle Contrary to section 39 (6) (a) (b) & (5) of the Road Traffic Act, [Cap 1 68]), the law provides under section 39 (7) of the Road Traffic Act, [Cap 168] p that for purposes of paragraph (a) of subsection (6) and without prejudice to paragraph (b) or (c) of that subsection the owner or employer of the Defective motor vehicle shall be deemed to have permitted use of the Defective motor vehicle unless he can satisfy the Court inter a//a, that he the employer/owner, took all reasonable steps necessary to ensure that such contravention could not occur. All these elements were not considered into the facts of the case read over by the prosecutions to the 2 nd Respondent. That being the case, the facts of the case read over to the Respondents upon the plea of guilty were not all inclusive of the necessary elements of the offences the Respondents had been charged with and convicted of. Their purported pleas of guilty were therefore equivocal, hence not worthy of grounding conviction Thirdly, it was also wrong to consolidate the facts of the case, upon the pleas of guilty as if the Respondents were jointly and together being charged with the same offence. The Respondents' equivocal pleas cannot be allowed to stand against the test of justice. By virtue of the revisionary powers of the Court under section 373 (1) (a) of the CPA, [Cap 20] the Court hereby quash the Respondents' conviction and set aside any order thereof. GEORGE M. MASAJU JUDGE 15/2/2019 6