20180312 TZCA Dodoma 1

IN THE COURT OF APPEAL OF TANZANIA

AT DODOMA (CORAM: MBAROUK, J.A, MZIRAY. J.A And MWAMBEGELE. J.A.l CRIMINAL APPEAL NO. 349 OF 2017 ISAYA DAVID @ MANGLEZA CHANZI......................... ........... APPELLANT

VERSUS THE REPUBLIC....... ........................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dodoma) fMohamed. 3.^ dated the 4thday of August, 2017 in DC Criminal Appeal No 142 of 2016

JUDGMENT OF THE COURT 7th & 13th March, 2018 MWAMBEGELE. J. A.: The appellant Isaya David @ Mangleza Chanzi was charged with and convicted, allegedly on his own plea of guilty, of unnatural offence c/s 154 (1) of the Penal Code, Cap. 16 of the Revised Edition, 2002 (hereinafter referred to as the Penal Code). He was awarded the mandatory sentence of life imprisonment. It was alleged that on 05.10.2016 at about 17:00 hours at Mtakuja Village within the Manyoni District of Singida, he unlawfully did have carnal knowledge of a certain Joseph Chindeu; a child aged four years against the order of nature. His appeal to the High Court was unsuccessful, for, Mohamed, J. dismissed it in its entirety on 04.08.2017. Undeterred, he has come to this Court on second appeal on essentially two grounds of complaint. In the purported third ground, the appellant simply wished to be present at the hearing of the appeal. The two grounds may conveniently be paraphrased as follows: 1. The trial and first appellate courts erred in law and fact in convicting the appellant basing on an equivocal plea; (i) The copy of the proceedings on page 2 indicate that preliminary hearing was conducted and the law does not allow such thing if the accused pleaded guilty to the charge; (ii) The purpose of it is to ascertain what is not in dispute so as to minimize costs of calling witnesses. Under such circumstances

the plea was equivocal 2. The trial and first appellate courts erred in law and fact in not warning itself that the cautioned statement was wrongly admitted since it was not read loudly in court when tendered before the court. At the hearing of the appeal before us on 07.03.2018 the appellant appeared in person, unrepresented. The respondent Republic had the services of Mr. Morice Sarara, learned State Attorney. When given the floor to argue his appeal, the appellant, fending for himself, opted to hear the learned State Attorney in response of the grounds of appeal after which he would unleash his arsenals in rejoinder, if need arose. In response to the grounds of appeal, the learned State Attorney supported the appellant's conviction and sentence meted out to him. He submitted that the plea was but an unequivocal one to which the trial court had no option but to convict and sentence him according to law. He fortified his arguments by referring us to the proceedings which took place on 07.10.2016 as appearing at pp. 4 - 7 of the record of appeal that when the charge was read over to the appellant he pleaded guilty and when the facts comprising the offence were read out to him, he admitted that they were correct. On the second ground, the learned State Attorney submitted that the appellant did not object to the cautioned statement being tendered in evidence. However, on

reflection, the learned State Attorney conceded that as the cautioned statement was not read out in court after it was admitted, it may be expunged. But the learned State Attorney was quick to remark that even without the cautioned statement, the appellant's plea was unequivocal sufficient to mount a conviction against him. Rejoining, the appellant submitted that he was in bad blood with the victim's mother and therefore the case was a frame-up. He also stated that he never signed the cautioned statement. Neither did he sign the facts of the case in court after he allegedly pleaded guilty. He said he could read but not write and therefore he could not have signed both documents; the cautioned statement and the court record admitting to the facts after he allegedly pleaded guilty. We have considered the appellants arguments as well as the submissions of the learned State Attorney for the respondent Republic. The paramount question which we think we should answer first and which is the gist of the first ground of appeal, is whether or not the plea was unequivocal. We find it convenient to state at this stage that the provisions of section 360 of the Criminal Procedure Act, Cap. 20 of the Revised Edition, 2002 (hereinafter referred to as the CPA), prohibit appeals against conviction on accused's own pleas of guilty. The provision reads: "(1) No appeal shall be allowed in the

case o f any accused person who has pleaded guilty and has been convicted on such plea by a subordinate court except as to the extent or legality o f the sentence. (2) Except with the leave o f the High Court, no appeal shall be allowed in cases in which a subordinate court has passed a sentence o f a fine not exceeding one thousand shillings only, or o f corporal punishment only imposed on a person under sixteen years o f age, or from a sentence o f imprisonment in default o f the payment o f a fine if no substantive sentence of imprisonment has been passed. (3) No sentence which would not otherwise be liable to appeal shall be appealable on the ground that the person convicted is ordered to find security to keep the peace". The question which pokes our minds at this juncture is: was the appellant's plea in this case unequivocal? Mr. Sarara, learned State Attorney is of a firm view that it was. With respect, we fall in the same basket with the learned State Attorney that the plea was but an unequivocal one. We shall demonstrate. It is on record that on 07.10.2016, when the charge was read over and explained to the appellant and asked to plead thereto, he pleaded in the following terms: "It is true I had carnal knowledge o f the said person against the order o f nature" After that the court entered a plea of guilty and called upon the prosecution to adduce the facts

constituting the offence. The prosecution adduced the facts of the case to which the appellant admitted as true and correct and signed against them. After that the court found the appellant guilty as charged and convicted him accordingly. After conviction, the prosecution tendered the appellant's cautioned statement and the PF3 of the victim to which the appellant had no objection. The court admitted the two documents in evidence. After mitigation, the court sentenced him to the mandatory life sentence in prison. We wish to reiterate that, under normal circumstances, in terms of section 360 of the CPA reproduced above, no appeal against conviction is allowed by law on an accused person's plea of guilty. There are, however, exceptional instances under which an accused may be allowed to appeal against conviction on his own plea of guilty. In Bashiri Hassan v. Republic, Criminal Appeal No. 195 of 2013 (unreported), a case supplied to us by the respondent in its list of authorities, we recited an excerpt from Rex v. Forde [1923] 2 KB 400 as reproduced in Khalid Athumani v. Republic [2006] TLR 79. We are of the view that the excerpt, as appearing at pp. 403 and 82 in Forde and Khalid Athumani, respectively, merits recitation here for emphasis. It reads: "A plea o f guilty having been recorded, this court can only entertain an appeal against conviction if it appears (1) that the

appellant did not appreciate the nature o f the charge or did not intend to admit he was guilty o f it or (2) that upon the admitted facts he could not in law have been convicted o f the offence charged." The circumstances were set out in clearerterms by the High Court [Samatta, J. (as he then was)] in the case ofLaurence Mpinga v. Republic [1983] TLR 166. In that case it was held: " ... an accused person who has been convicted by any court o f an offence "on his own plea o f guilty" may in certain circumstances appeal against the conviction to a higher court. Such an accused person may challenge the conviction on any o f the following grounds: 8 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 law in treating it as a piea o f guilty; 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; and, 4. That upon the admitted facts he could not in law have been convicted o f the offence charged." We are alive to the fact that the Laurence Mpinga case (supra) is the decision of the High Court to which we, the Apex Court, are not bound; we can only be persuaded with. However, we are certain in our minds that the case established good principles of law to which we subscribe. That is perhaps the

reason why we have approved the case in a number of decisions including Kalos Punda v. Republic, Criminal Appeal No. 153 of 2005, Josephat James v. Republic, Criminal Appeal No. 316 of 2010, Ramadhani Haima v. Republic, Criminal Appeal No. 213 of 2009 and Baraka Lazaro v. 9 R., Criminal Appeal No. 24 of 2016 (all unreported) and relied upon it in Bashiri Hassan (supra) and Ngasa Madina v. Republic, Criminal Appeal No. 151 of 2005 (all unreported). The appellant's plea in the case at hand does not fall within any of the circumstances set out in Laurence Mpinga (supra). Neither does it fall within the exemptions envisaged by Khalid Athumani (supra). We are increasingly satisfied that after the court convicted the appellant on his own plea of guilty, the facts comprising every constituent of the charge were explained to him and that he admitted every such constituent. His appeal against conviction is therefore misplaced. We are aware that the court recorded that it complied with the procedure under section 192 (3) of the CPA and the appellant complains in the second limb of the first ground. This point will not detain us. We are satisfied that the court recording compliance with section 192 (3) of the CPA did not prejudice the appellant. Neither did it affect the unequivocal plea, for, that compliance was recorded by the court after the appellant admitted to the facts comprising

the ingredients of the offence. 10 We find too cheap to buy the appellant's episodes he is concocting at the eleventh hour that he can read but cannot write or that the facts were not read to him or that he was in bad blood with the victim's mother. Having dispassionately examined the record of appeal including the original court file and having examined what transpired on 07.10.2016 as appearing at p. 4 of the record, we think the concocted episodes are just lame efforts by the appellant to save his otherwise sinking boat. We are satisfied, as already intimated above, that in the light of Khalid Athumani and Laurence Mpinga, the appellant's plea was but unequivocal to which he was legally not supposed to appeal against conviction. Consequent to the above findings, we remark that the sentence meted out to the appellant was the minimum provided by the law to which facts he admitted; that Joseph Chindeu was a boy aged four years. His appeal against sentence cannot also succeed. Having found that the appellant's was an unequivocal plea against which he was by law barred to appeal against conviction; and having found that the sentence of life imprisonment was the minimum 11 provided by the law, we find ourselves loathe to decide the second ground. In the upshot, the appeal without merit is dismissed in its entirety. Order accordingly. DATED at DODOMA this 12th day of March, 2018. M.S. MBAROUK

JUSTICE OF APPEAL R.E.S. MZIRAY

JUSTICE OF APPEAL J.C.M. MWAMBEGELE

JUSTICE OF APPEAL I certify that this is true copy of the original. 5 E.F. 51

DEPUTY F STRAR COURT C 3PEAL 12