20101118 TZHC Mbeya

1

IN THE COURT OF APPEAL OF TANZANIA

AT MBEYA (CORAM: NSEKEL.A, J.A., MSOFFE, J.A., And ORIYO. J.A.) CRIMINAL APPEAL NO. 69 OF 2007 HEM EDY MKON DYA ......................................................................APPELLANT

VERSUS THE REPUBLIC ...........................................................................RES PON DENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Mackanja, J.) dated the 11th day of August 2004 in {DC) Criminal Appeal No. 10 of 2004

JUDGMENT OF THE COURT 15th & 19th November, 2010 NSEKELA, J.A.: The appellant, Hemedy s/o Mkondya, was the first accused person before the District Court of Mbozi District at Vwawa together with six other accused persons who were charged with the offence of armed robbery contrary to sections 286 and 285 of the Penal Code. He was convicted on his own plea of guilty and sentenced to the statutory sentence of thirty (30) years imprisonment. His appeal to the High Court (Mackanja, J.) was dismissed in its entirety, hence this second appeal to this Court. 2 At the hearing of the appeal,. the appellant appeared in person, unrepresented. He preferred four grounds of appeal. Essentially, the appellant had two main complaints. First, that he did not unequivocably plead guilty to the offences of armed robbery and second, that the offences were not established to the requisite standard in criminal law, that is beyond all reasonable doubt. The appellant adopted the contents of the grounds of complaint and had nothing useful to add by way of elaboration. The respondent Republic was represented by Mr. Vincent Tangoh, learned Senior State Attorney. Before the hearing of the appeal, the learned Senior State Attorney withdrew the preliminary objection which he had earlier lodged in ter·ms of Rule 4(2) (a) of the Court of Appeal Rules, 2009. As regards the substantive appeal, on further

reflection, Mr. Tangoh declined to support the conviction and sentence imposed upon the appellant. He submitted that the trial court wrongly entered the plea of guilty since all the ingredients of the offences of armed robbery were not explained to the appellant. The facts, if any, as narrated by the prosecution, did not disclose any violence used to take or retain the various items purportedly taken by the appellant during the commission of the offences. Under the circumstances, Mr. Tangoh concluded that the plea was not unequivocal. The sequence of events starts with the arrest of the second accused during the trial (Twisa s/o Jailo) at Vwawa Police Station. PWl No. D. 2385 D/CPC (sic) Michael, was a passenger in a mini-bus TZL 2385 en route from Vwawa to Tunduma. The second accused boarded the mini-bus at some point. He had two bags with him. PWl suspected the second accused and so at Vwawa, •. he summoned him for interrogation. The second accused apparently confessed that he was involved in a robbery at Msangano and implicated the appellant. After examination-in-chief of PW2 No. 3933 D/C Saidi, the appellant, instead of cross-examining the witness, stated as follows - 11 1 have no questions. I admit that I'd committed the robbery jointly with the 2nd accused. I change my plea to that of guilty. " The Court then entered a plea of guilty in respect of the appellant in all

counts. Then the record reads as follows: - 4 "Facts: The facts are as narrated in the PHG (sic) and clarified by PW1 and PW2 in their testimonies. The gun had not been seized. 1st accused: The facts are true and correct. Court: I convict the 1st accused as charged on all the 7 counts. " The conviction was apparently based partly on the facts as narrated during the preliminary hearing, and partly on the evidence of PW1 and PW2. After the trial Court had entered a plea of guilty, the record does not show that the prosecution narrated the facts. It only made reference to the facts narrated during the preliminary hearing read together with the testimony of PW1 and PW2. As regards the contents of the preliminary hearing, it is only the matters not in dispute that have a bearing on this issue. What were the matters not in dispute? For the sake of clarity, we reproduce them below - "MATTERS NOT IN DISPUTE 1. That the accusd's (sic) names and particulars are as stated by the pp-except for the Z'd accused's age 26 years and not 22 years the third accused's tribe - 5 Mlambya and not Mnyiha/ and 7th accusds (sic) resident which is Mbalizi and Songwe.

2. That the Z1d accused had been arrested by D/Cpl Michael at Vwawa Police stand on 22.5.98 3. And that the accused had been arrested at different places before they got charged in court between June and August 1998. /, We do not read anything in the "three matters not in dispute" in which the appellant had admitted that he took part in the robbery at Msangani using a gun. On the 13.1.2000 when a plea of guilty was entered, the prosecutor did not narrate the facts constituting the offences of armed robbery with which the appellant was charged. The evidence of both Pwl and Pw2 did not disclose the ingredients of armed robbery as well. If anything, perhaps the offence disclosed was being in possession of property suspected of having been stolen. The procedure which should be followed before a plea of guilty is entered was well explained in the case of Adan v Republic [1973] EA 445. Spry.V.P. stated thus at page 446 - 6 "When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand. The magistrate should then explain to the accused person all the essential elements, the magistrate should record what the accused has said as nearly as possible in his own words, and then formally enter a plea of guilty. The magistrate should next ask the

prosecutor to state the facts of the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts. If the accused does not agree with the statement additional facts which if true, might raise a question as to his guilty, the magistrate should record a change of plea to ''not guilty" and proceed to hold a trial. If the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts and the accused reply be recorded. " 7 The learned judge on first appeal made the following finding, and we quote it below- ''Jn fact the first appellant (appellant herein) entered his plea of guilty after he had heard the testimony of Hamisi Mwamengo (PW4); Christopher Siame (PW6); Gaudence Simbeye (PW7) and PWB swore that the robbers were armed with a gun and a machete. PWS stated categorically that the first accusect who now appears as the first appellant had a gun. In these circumstances I have not the slightest doubt that the first appellant's plea was unequivocal. He knew to what he was pleading seven counts of armed robbery." The record shows that the purported plea was entered after PWl and PW2 had given their evidence. PW4; PWS; PW6; PW7 and PW8 all gave their evidence after the appellant had been convicted and sentenced.

After all, their testimony did not concern the appellant. The High Court (Mackanja, J.) erroneously took into consideration the testimony of PW 4; PWS; PW6; PW7 and PW8 to bolster the case that the appellant changed his plea after hearing the testimony of these witnesses. As explained above, these witnesses testified after the appellant's conviction and sentence. We are therefore constrained to 8 fault the finding of the learned judge on first appeal and make our own finding. (See: Director of Public Prosecutions v Jaffari Mfaume Kawawa [1981] TLR 149 at page 153). The prosecution had to establish that actual violence or threat of actual violence was used by the appellant to obtain or retain the purportedly stolen items. The nature of violence must also be established. This was not self-evident from the matters not in dispute. The prosecution did not narrate the facts along the lines propounded in Adan v Republic [1993] EA 445 at page 446. In the event, the appellant did not plead guilty to the charge of armed robbery with a full understanding of the charges against him. This ground of complaint has merit. Having reached this conclusion, we do not deem it necessary to consider and determine the remaining grounds of complaint. We therefore allow the appeal, quash the conviction and set aside the sentence imposed upon the appellant. However, we order a retrial of the appellant before another magistrate of competent jurisdiction. It is accordingly ordered. 9 DATED at MBEYA this 18th day of November, 2010. H. R. NSEKELA

JUSTICE OF APPEAL J. H. MSOFFE

JUSTICE OF APPEAL K. K. ORIYO

JUSTICE OF APPEAL