HABA LIGOHA

IN THE HIGH COURT OF TANZANIA DODQMA SUB - REGISTRY AT DODOMA DC. CRIMINAL APPEAL NO. 17281 OF 2024 (Arising from Criminal Case No. 5226 o f2024 in the District Court of Bahi) HABA LIGOHA.....................................................APPELLANT VERSUS THE REPUBLIC............ ....................................RESPONDENT RULING Iff' & 3CP August, 2024 MUSOKWA. J. In the District.Court of Bahi (trial Court), the appellant and two other accused persons who are not party to this appeal, were charged with the offence of cattle theft contrary to the provisions of sections 258 and 268 (1) and (3) of the Penal Code, Cap. 16, R.E. 2022 (Penal Code). According to the particulars of the offence, it was alleged that, Haba s/o Ligoha, Mkapa s/o Mosi and Ernest s/o Simon on 26th February, 2024 at about 20:00hrs, in Uhelela village within Bahi District in Dodoma Region, did steal one sheep valued at TZS. 90,000/- the property of one Mabwayi s/o Ligoha. When the matter came for plea taking at the trial court on 28th February 2024, the appellant allegedly pleaded guilty to the offence. Consequently, the trial court proceeded to convict the appellant on his own plea of guilty and sentenced him to five years imprisonment. The appellant being aggrieved, lodged the present appeal, the grounds of which shall not be reproduced herein as the matter was not determined on the merits thereof. This appeal was scheduled for hearing on 16th August, 2024 whereas the appellant appeared in person, unrepresented; the respondent enjoyed the services of Mr. Sadik Abdulkheri, learned state attorney. Prior to entertaining the merits of the appeal, the court suo mottu noted an irregularity on the face of the court records. The said irregularity was in relation to the variance between the plea that was recorded in the original (hand-written) proceedings of the trial court; and the plea recorded in the typed proceedings. Accordingly, the parties were invited to submit on the aforementioned irregularity. Mr. Sadik, learned state attorney for the respondent submitted that, the law provides that where there is a contradiction between the typed proceedings and the hand-written proceedings; the hand-written proceedings shall prevail. The learned counsel for the respondent referred to the plea as recorded in typed records which reads as follows: - 2 "It is true I steal (sic) one sheep valued at TZS. 90,000/- property ofMabwayis/o Ligoha". According to Mr. Sadik, the cited plea was an unequivocal. The learned state attorney, comparing the two pleas, submitted that the plea that was recorded in the hand-written records, was equivocal. The said equivocal plea reads "All facts are true, I was taken (sic) that cattle myself". This was the appellant's plea after reading the facts of the charge. The counsel for the respondent stated that, this plea is ambiguous and to that effect it is an equivocal plea. Further, the respondent's counsel submitted that the law requires the plea of an accused person to be unambiguous. Thus, when a plea is ambiguous or contradictory to the earlier plea, the trial court is required to enter a plea of not guilty. This will pave the way for the disputed facts to be proven at the trial. In support of his position, the case of Dely Bula vs The Republic [2002] TLR 80 was cited. Mr. Sadik argued that under the circumstances, the legal recourse is for the case file to be remitted to the trial court for the preliminary hearing to be conducted afresh in accordance with the law. The respondent further prayed that the proceedings of the preliminary hearing be nullified, the conviction be quashed and the sentence set aside. The case of Samson Daniel 3 Mwang'ombe vs The Republic, Criminal Appeal No. 106 of 2006 (unreported) was preferred to cement this point. The appellant on the other hand, had nothing substantial to submit. Instead, he prayed that the case file be remitted to the trial court due to the fact that the preliminary hearing was unfairly conducted. Upon a thorough perusal of the trial court records, the main issue to be determined is whether or not the impugned plea of guilty was unequivocal. Section 360 of the Criminal Procedure Act, Cap. 20, R.E. 2022, (CPA) provides that: - 360. -(1) An appealshall not be allowed in the case o fany " accused person who has pleaded guilty and has been convicted on such plea by a subordinate court except as to the extent or legality of the sentence." The above cited provision of the law, stipulates the general rule with regard to appeals emanating from a plea of guilty. The law prohibits an appeal against conviction, on a plea of guilty, except as to the extent or legality of the sentence. In the case of Richard Lionga @ Simageni vs Republic, Criminal Appeal No. 14 of 2020, the Court of Appeal of Tanzania (CAT) at pages 7 to 9, partly held that: - "For a plea o f guilty to be unequivocal and therefore valid, it must pass the test that this court set in the case of Michael Adrian Chaki v Republic, Criminal Appeal No. 339 of 2017(unreported). In that case, the court stated: "...there cannot be an unequivocal piea 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 property framed and must explicitly disclose the offence known to law; 2. The court must satisfy itself without any doubt and must 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 of the offence. This is in terms of section 228(1) of the Criminal Procedure Act. 5 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 accusedmustbe asked to plead and mustactuallyplead guilty to each and every ingredient o f the offence charged and the same must be properly recorded and must be dear (see Akbarall Damji vs R.2TLR 137 cited by the court in ThuwayAkoonay v Republic (1987) T.L.R 92); 6. Before a conviction on a plea o fguilty 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." The CAT observed further at page 9 and 10 that: - "Where an accused pleads guilty to the charge, before conviction, the law is that, the prosecution is duty bound and it must audibly and understandably narrate facts establishing the offence as alleged in the statement and particulars o f offence. That Is, the prosecution must explain clearly and adequately the circumstances in which and how the offence was committedin specific and intelligible terms. The prosecution must detail the substance o f the evidence and where applicable tender documentary and any other exhibits, all meant to ensure that the accused clearly understands without any doubt, what it is that he is alleged to have done wrong and contrary to law." Citing further the case of Michael Adrian Chaki (supra), it was stated in addition that: - "In a situation where the accused admits the allegations in the charge, it is deep rooted and invariable practice that the responsibilityis on theprosecution to state facts establishing the allegations in the charge. In short, a plea of guilty relieves the prosecution the burden of calling witnesses to prove the charge butit does not relieve them from narrating facts correctly, clearly and sufficient enough to support the offence charged [see Satehe Mohamed v. R (supra)]. Actually, the facts narrated are in lieu o f the otherwise evidence that the prosecution would be required to lead in court by calling witnesses so as to prove the charge beyond reasonable doubt." For purposes of transparency, the proceedings of the preliminary hearing at the trial court, as per the hand-written trial court records are reproduced herein after: - "Date: 28/02/2024 Coram: A.M. MSANGI-RM PP: Ramadhani ACCUSED: 1st -Present 2nd- present 3rd- present PP-The matter is coming for plea COURT-The charge is read to the accused person who are required to plea thereto. 1staccused- It is true COURT-EPG 2ndaccused- It is true but I didn't theft it. Court-EPNG J daccused- It is not true Court-EPNG FACTS OF THE CASE 1,2,3,4,5,6 The facts of the case are read to the accused persons who are required to plead thereto. 1st accused- A ll facts are true; I was taken that cattle myself. 2ndaccused-1 did not theft the cattle 3d accused-I did not agreed with the facts. MEMORANDUM OF UNDISPUTED FACTS The 1st accusedperson agreed with all facts of the case, the 2ndand 3rdaccusedperson denied all fads, agreed with 1,2, and 4 facts but they denied die J d facts. Further, in convicting the appellant, the trial court records entail the following: - 8 Ruling The accused person charged with the offence o f the cattle theft c/s 258 and 265(1) (3) of the Pena! Code Cap.16 R.E 2022. When the charge readout to the accusedpersons the 1st accused pleaded guilty and the 2nd and J d accused persons pleaded plea of not guilty. When the facts of the case read to the accused person, the 1st accused person agreed with all facts o f the case. The 2nd and 3 d accused persons agreed with the 1,2 and 4 facts but they disagree with the J d facts. This court find the 1st accused person guilty of the offence charged with cattle theft c/s 258 and 268 (1) (3) of the Penal Code Cap. 16 R.E. 2002.1 hereby convict the 1st accusedperson." In the case of Njile Samweli @John vs The Republic, Criminal Appeal No. 31 of 2018 (unreported), the CAT referring to the case of Laurence Mpinga vs Republic [1983] TLR 166 observed that: - i. An appeal against a conviction based on an unequivocal plea o f guilty generally cannot be sustained, although an appeal against sentence may stand; ii. An accusedperson who has been convicted by any court of an offence on his own plea o fguilty may appealagainst the conviction to a higher court on any of the following grounds: 1. that, even taking into consideration the admitted facts, his piea was imperfect ambiguous or unfinished and, for that reason, the lower court erred in iaw in treating it as a piea ofguilty; 2. that he pleaded guilty as a result o f mistake or misapprehension; 3. that the charge laid at his door, disclosed no offence known to law; 4. that upon the admitted facts he could not in law have been convicted of the offence charged." The CAT's case of Msafiri Mganga vs Republic, Criminal Appeal No. 57 of 2021(unreported) further provides that: - "... This goes to insist therefore that in order to convict on a plea o fguilty, the court must in the first place be satisfied that the plea amounts to an admission o f every constituent o f the charge and the admission is unequivocal." This being a charge of theft, in order for the appellant's plea to be deemed unequivocal, the said plea must have constituted an admission of each element of the charged offence. Theft is committed where a person, without any claim of right, takes or converts property capable of being stolen aiming at depriving the owner of the said property. Section 258(1) of the Penal Code provides that: - 10 "Aperson who fraudulently and without claim ofrights takes anything capable ofbeing stolen, or fraudulently converts to the use of any person other than the general or special owner thereof anything capable of being stolen, is said to steal that thing. In the present case, the purported plea of guilty which is recorded as "AH facts are true; I was taken (sic) that cattle myself; does not indicate any elements of fraudulent conversion by the appellant, with intent to deprive the lawful owner the property. Thus, I am inclined to concur with the respondent's counsel that the purported plea of guilty was equivocal. Regarding the consequential orders, the learned state attorney prayed that the case file be remitted to the trial court in order for the preliminary hearing to be conducted afresh in accordance with the law. Ordinarily, that is the plausible prayer. However, on 29th April 2024, the record of the trial court indicates that the prosecution lost interest to prosecute the two co- accused persons namely Mkapa s/o Mosi and Ernest s/o Simon and they were discharged forthwith. This being a group accusation, the proposed order to remit the case file for retrial of the appellant alone will amount to double standards. As the result, the order to remit the case file for retrial is declined for the reason indicated herein. 11 For the foregoing reasons and being guided by the aforementioned authorities, the appeal is allowed solely on the ground raised by this court suo mottu. The conviction is hereby quashed and the sentence is set aside. Further, I order that the appellant be released from custody and be set free forthwith unless he is held for some other lawful cause. Order accordingly. Right of appeal explained. DATED at DODOMA this 30thday of August, 2024. Ruling delivered in the presence of the appellant and in the presence of Ms. Margareth Tlegray, learned counsel for the respondent. 12