20181109 TZHC Dodoma

'V

IN THE HIGH CORUT OF TANZANIA (DODOMA DISTRICT REGISTRY)

AT DODOMA

APPELLATE JURISDICTION DC CRIMINAL APPEAL NO. 20 OF 2018 (Original Criminal Case No. 219 of 2017 of the District Court of Mpwapwa at Mpwapwa) E LII(ANA YUSTO PALAMOTO....I...I..IO............IIIP.......... APPELLANT

VERSUS THE REPUBLIC.....................II.................................RESPONDENT 261912018 & 911112018

JUDGMENT MASAJU, J. The Appellant, Elikana Yusto © Palamoto, was charged alongside Michael Mkada, Amasha Mzinga, Carlos Mzinga and Isacka Chingwiye in the District Court of Mpwapwa at Mpwapwa for the offence of: Burglary contrary to section 294 (1) (a) and (2) of the Penal Code, [Cap 16], Stealing contrary to section 265 of the Penal Code [Cap 16], Being in possession of Goods Suspected to have been Stolen Contrary to section 312 (1) (b) of the Penal Code, [Cap 16] and Receiving property stolen or 1 ) unlawfully obtained contrary to section 311 of the Penal Code, [Cap 16]. The said offences constituted the 1st count to the 4th count respectively. The 1st to the 3rd count was for all the accused persons, the Appellant inclusive. The 4th count was exclusively for the Appellant only. The appellant was the 1st accused person amongst the five accused persons (as they then were) in the trial court. The Appellant and the accomplices appeared in the trial court on the 24th day of August, 2017. When the charge was read over to them and each called upon to plead thereto on each particular offence in the specific counts, the Appellant pleaded guilty to all offences as hereunder; thus: "First count 15t acc: /ts true, I break into building. Second count 15t acc: it is true, I stole Third count 1st acc: it true, I was found with stolen goods. Fourth count 1st acc: it true, I stole stolen

properties" The Appellant's co-accused persons pleaded not guilty to each particular offence in the specific counts by just stating "its not true" Thereafter the record of the trial court reads as hereunder: OA "Court. First accused enter plea guilty for all counts, other accused EPNG to all counts. Sgd N.J. Nasari RM 24/08/2017 Pros: in vestiga tion is complete, I pray to read the facts of the case. Court: prayer granted Sgd N.J. Nasari RM 24/08/2017 Court: facts read and form part of this proceedings. Sgd N.J. Nasari RM 2410812017" Then written "Memorandum of facts" made under section 192 of the Criminal Procedure Act, [Cap 20] was read over to all the Appellant and his co- accused persons. The "Memorandum of facts"that formed part of the trial court's proceedings indicated that the prosecutions did expect to have 7 witness and 14 exhibits. The "Memorandum of facts did refer the Accused persons, the Appellant inclusive, in plural. The appellant was not 3 specifically singled out: the said facts read: "a/I the accused persons or that the accused persons" The record of trial court reads as hereunder; thus: "Court: Memo of agreed facts lstacc: I admit everything" 2'"acc: I admit my personal particulars, I admit that I confessed at Police, I admit on date I was brought to court. The rest I disagree 3rdacc.. I admit my personal particulars. I admit that I was brought to Police for

interrogations, the rest I disagree. 4thacc.. I admit my personal particulars, and date I was brought to court. The rest I disagree. 5hacc. I admit my personal partIculars, date I was brought to court, the rest I disagree. 15t acc: sgd 2'" acc: sgd 3rd acc: sgd 4th acc: sgd 5th acc: sgd Pros: sgd" Sgd N.J. Nasari RM 4 24/08/2017 Pros: I have cautioned statement of accused which he confessed at police, I pray this court to admit. jst acc: I have no objection Court: The cautioned statement of the first accused admitted to court as exhibit PE1. Sgd N.J. Nasari RM 24/08/2017 Conviction I hereby convict accused person as charged on his own plea of guilty to the offences. Sgd N.J. Nasari RM 24/08/2017 Previous conviction Pros: I have records of previous conviction, he was convicted at Mtera primary court for abduction and he was sentenced two years imprisonment. He finished his sentence this year January. Sgd 5 N.J. Nasari RM 24/08/2017 Mitigation I pray for leniency because my mother depends to me and he is unable to find food for herself. Sgd N.J. Nasari RM 24/08/2017 Court: I have considered that, the convict has previous convictions, therefore he deserves punishment so that it will be a lesson to himself and others with that behaviour. Therefore I hereby sentence the convict to one years imprisonment in each count; the sentence will run consecutive. Sgd N.J. Nasari

RM 24/08/2017 Court: Right of appeal explained. Sgd N.J. Nasari RN 2410812017" Aggrieved by the convictiOn and the sentence against him by the trial court, the Appellant has come to the court by way of an appeal. His Petition of Appeal bears three grounds of appeal; thus: "1. THA T, your honor Judge the trial court erred in law and fact when convicted and sentenced the appellant basing on the ground that I pleaded guilty to the charge without considering that the alleged plead of guilty was equivocal.

2. THA T. your honor Judge the trial learned Magistrate erred in law and fact when admitted that the appellant pleaded guilty to the charge but while the record show that the court conducted 0 Preliminary hearing followed by the so called "Preliminary hearing conducted C/S 192 CAP 20 R.E. 2002" in pages 3 of the proceedings something which available where an accused denies the charge as per the cited section above.

3. THAT, your honor Judge the act which done by the trial Magistrate at the trial was Preilminary hearing could not be taken as the procedure legally recognized where an accused person enter a plea of guilty to the charge due to that it is clear that the appellant's plea was imperfect, ambiguous and incomplete as it was held in the case of LA URENCE MPINGA VR [1983] T. L. R. 166" 26th When the appeal was heard in the Court on the day of September, 2018, the Appellant appeared in person, and being layman who didn't have the service of a learned person, adopted fully the said grounds of appeal to constitute the submissions in the court as he prayed the court to consider the said grounds of appeal and allow his appeal. The Respondent Republic was represented by Ms. Mwakyusa, the learned State Attorney, who readly supported the appeal as she agreed with the three grounds of appeal in its entirety that the purported plea of guilty by the Appellant was equivocal. The Respondent submitted that the facts of the case that was read over to the Appellant and his co-accused were for the Preliminary Hearing under section 192 of the CPA, [Cap 20] specifically for the person who has not pleaded guilty to the charge. In fact, the Appellant signed the Memorandum of agreed facts, which facts also comprised of non- agreed facts alongside the co - accused who had not pleaded guilty to the four

offences they had been jointly and together charged with. That, there was no specific facts in respect of the Appellant who had pleaded guilty to the four offences he has been charged with alongside the other four co-accused persons. The Respondent therefore agreed with the Appellant that the plea was equivocal for being ambiguous, imperfect and incomplete as per Lawrence Mpinga VR [1983] TLR 166 so rightly cited by the Appellant. That, the facts for Preliminary Hearing under section 192 of the [CPA, Cap 20] are quite different from the facts of the case upon plea of guilty under section 228 of the CPA, [CAP 20]. Indeed, the Court agrees with both the Appellant and the Respondent that the facts that was meant for Preliminary Hearing under section 192 of the CPA, [Cap 20] cannot constitute facts of the case in - 8 Is respect of the accused person who pleads guilty to the charge. This is because the facts of the case under section 192 of the CPA, [Cap 20] are specifically for the person who pleads not guilty to the charge. The facts of the case for the person who pleads guilty to the charge are made under section 228 (2) of the CPA, [Cap 20]. The facts that were read over to the Appellant and co- accused in the trial court under section 192 of the CPA, [Cap 20] were for all the accused persons, the Appellant inclusive, and they were referred to as "The accused persons" or "all

the accused persons"without singling out the Appellant. That is why at the end of the day all the accused persons, the Appellant inclusive, did sign the memorandum of agreed facts whilst the said memorandum also did comprise of the disagreed facts. Legally speaking the purported memorandum of agreed facts was not in compliance with section 192 (3) of the CPA, [Cap 20 ]. Since there was no specific facts of the case for the person who pleads guilty to the charge under section 22 of the CPA, [Cap 20]; legally speaking there was no facts of the case in support of the plea of guilty for the would be unequivocal plea of guilty. The right procedure was that once the charge was read over to the Appellant and his co- accused, whereby the Appellant pleaded guilty to the charge, in all four counts, then specific facts could be drawn by the prosecution and be read over to him specifically in the Court and upon admitting the said facts as well, the Court could convict him accordingly. That is what section 228 (2) of the CPA, [Cap 20] provides. The co - accused persons who plead not guilty to the charge are the ones who should undergo trial under section 229 of the CPA, [Cap 20] upon the conclusion of Preliminary Hearing under section 192 of the CPA, [Cap 2 0]. The trial court mixed up the procedure altogether hence the equivocality of the plea of guilty as the parties have so rightly

advised the Court. The right procedure to be followed by the court upon plea of guilty under section 228 (2) of the CPA, [Cap 20] has been well stated by the court in Khalid Athuman V The Republic (CAT) Criminal Appeal No. 103 of 2005 (Arusha Registry, unreported). Such procedure must be complied with accordingly if conviction has to be made out of the plea of guilty. In the instant case since, the procedure that was adopted by the trial court was not in accordance with the law, hence the equivocality of the plea. The Appellant's conviction is. hereby quashed and the sentence thereof set aside as the appeal is allowed accordingly. The Appellant shall be released from the prison forthwith unless he is otherwise held for some other lawful cause. In passing, the court points out that the Appellant's purported previous conviction for the offence of Abduction was not proved in the trial court as no copy of judgment thereof was ever made available to the trial court for consideration when it was about to pass the sentence against the Appellant. Previous conviction if any against the offender must be strictly proved in the court if the courts were to consider such previous convictions in the course of passing sentences against the offenders in terms of the proviso to section 56 (1) of the Evidence Act, [Cap 6] and section 236 of the CPA, [Cap 20] 10 / ¼ GEORGE M. MASAJU

JUDGE 9/11/2018 11