20200115 TZHC Mwanza

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IN THE HIGH COURT OF TANZANIA · AT MWANZA ·CRIMINAL APPEAL NO. 336 ·of 2018 (Appeal from the decision of the District Court of Bukombe in Criminal Case No, 158 of 2018 and_dated on J6h-Jul½ 201~ Hon. A. R. Kahimba - RM] ISMAIL SHEDRACK @ SAMSON .................·c••"""····••a••···· APPELLANT

VERSUS REPUBLIC . •••••• . ••••••••••••••••• ■■ 11 ■ 1H1 ■ a11 ■ 111111m,a11si ■■ 11a ■ Il lllllll!liln: l!Glll:tllll!lS!lt!llliSlfll'!IB .RESPONDENT

JUDGMENT 11th December, 2019 & 1917 Janua'r½ 2020 M. M. SIYANI, J. .. F• .\ Ismail Shedrack @ -Samson> the appellant in the instant appeal was · arraigned before the District: Court of Bukombe and charged with the offence of stealin·g 6fa motorcycle contrary to section 258 and 265 of the Penal ·code, ea·p 16 Revised Edition of 2002. It was alleged by the prosecution side at the trial court that around 19:0oh·rs on 25th day of November 2017, the appellant was at Majengo street within Bukombe District in Geita Region wh~re he stole a motor cycle with registration. No. T7l8 CKM make SANLG red colour valued Tshs 1,700,000/= the property 1 I 1-- of Mussa Ng.agarii. T,he record shows upon readin9 of the c·harge to him, . . the appellant pleaded guilty and admitted the above facts advanced by the prosecution side. As such, the appellant was convicted on his own plea and sentence to. serve a term of four ( 4) years imprisonment Aggrieved, the appellant preferred this appeal against both conviction and sentence. His petition of appeal contaiins the following five (5) grounds of grievances: 1. That it is not true that the appellant pleaded gu!lty as indicated in the proceedings. .

2. That the trial Magistrate erred in law to convict the appellant by u~ing he<!}tsay:evidence given by Police officer namely G. 5580 DC EvaIius. ·_ Thps lhe prosecution side failed to prove that the appellant was the one who committed the offence charged. 3. · That; the learned. trial Magistrate erred in law ·by failing to give . ·' reason behind the, appellant's conviction.

4. That the learned trial Magistrate erred in law in not giving the right to be heard to the appellant I 5. That the learnedr Magistrate and prosecution side erred ~n point of law in not callil1g the con1plainant Mussa Mgagani to prove his claims. 2 I . ). . . th When the ·appeal came for haring on 11 November, 2019, the appellant ' . . appeared in person and Ms Mwanahawa Changale, the learned State Attorney appeared for the Republic. Given a .chance to address the· court, the appellant opted to adopt the contents of his grounds of appeal to be his submission and went on to add that save for the tortures inflicted to hi_m, he was not procured before any court _of law and so prayed for his acquittal. On the other- hand, Ms Changale consolidated her arguments in respect of all the five grounds of appeal. As shows earlier, she contended that the appellant was convicted on his own plea of guilty and therefore the instant appeal is an attempt by the, appellant to challenge his conviction basing on such plea of guilty• which . iq',_;fr~r view was improper. . According to the learned State Attorney the law allows no appeal on conviction as a results of onfs plea ~f guilty unless the court is satisfied that th~ appellant either did not understand the charges and so he did not at aH plead guilty, or the facts adduced before the court did not constitute the offense charged. Ms Changale

supported her arguments with a Court of Appeal of Tanzania decision in Khalid Athumani Vs ·Republic (2006) TlR 79 where the 3 court ·observed circumstances under whicll a conviction on an accused person's· own plea of guilty may be appealed against as above. She argued . . . since both the charge of theft and the facts showing that the appellant stole a motorcycle owned by one Mussa Ngagani were ·read and explained to him, the appellant understood the charge facing him and his plea of guilty was therefore properly taken in accordance with the law and in any event not ambiguous. As s~ch the learned State Attorney argued the court to dismiss the appeal. Having summarized what wa·s submitted to me by the parties· and having gone thr~ugh the grounds of appeal and the trial _court's records, I will adopt the same course taken by Ms Changale by consolidating my reasoning in respect of the five grounds of complaints. As I begin, I find it prudent that I set the records clear on the position of the law with regard to appeals against conviction on plea of guilty. As correctly argued by M~ Changale, the law under section 360 (1) of the Criminal Procedure Act Cap 20 RE 2002 bars appeals against conviction where such conviction was a result of unequivocal plea of guilty. by the appellant. For · reference 4 ( purposes, I find it prudent to reproduce the contents of the above provision as

hereunder: 360: (1) No appeal shall be allowed in the case of 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 of the sentence rt follow therefore that _from the above provision if the appellant pleaded guilty to the charged offense and convicted as a result of such plea, then save for an appeal against sentence, no appeal can be properly entertained against the resulting -~onvic~ion. That notwithstanding, for that estoppel to . ' apply against the convicted person, it must first be established that the plea was unequivocaL This ½ourt has in different occasions· highlighted 'i .. . . • . I • circumstances und~r which ·an appeal on plea of guilty against conviction may be allowed: In Lawrence Mpinga Vs Republic (1980) TLR 166 Samatta, J. as he then was, held that: An accused person who had been convicted by any court o( an offence on his own plea ofgwlty may appeal against the conviction to a higher court on the following grounds: 5 / i ( •I • 1. That taking into consideration .the admitted facts his plea was imperfect ambiguous. or unfinished and for that reason, the lower court. erred in law in treating it as a plea ofguilty; 2. That he pleaded guilty · as a result of a rnistake or misapprehension; · 3. That the charge laid ai his door. disclosed an· offence not known to law,: and that

upon the admitted fact~ he could not in law have been convicted of the offence charged [Emphasis supplied] Borrowing a leaf from the above <;fecision, it is possible, in my view where a conviction was a result of an equivoca_l Plea, for an aggrieved person to appeal against conviction. The procedure to be followed by a courts of law in case of plea of guilty was laid in Rex Vs Yonasani EgaMu and Others (1942) EA CA 65 at Page 67, a decision which was quoted with approval by . the Court of Appeal of Tanzania in John Faya Vs Republic (supra), where the defunct Eastern African Court of Appeal stated the following: In any case in which a conviction is likely to proceed on a plea of . . gwlty, it is most desirable not only that evety constituent of the charge should be explained to the accused but that he should be required to admit or denv eve;y constituent and that what he savs 6 ' . . should be recorded in a form which will satisfy an appe(late court that he fully ·understood the charge and pleaded guilty· to every I element of it unequivocally. [Underlined emphasis supplied] ' In the present appeal the trial court's records dated 16th July 2018, indicates when the charge on count of theft was read over to the appellant, he admitted the same and categorically stated ''Ni k\!veli nimeiba". Ag~in, when the facts constituting the charged offense were read over and explained to him,

the appellant went on to admit the same as correct and true. As prior stated, facts admitted by the appellant clearly indicated that he stole a motor cycle with registration No, T718 CKM make ,,. . . . SANLG red colour the property of Mussa Ngagani. Taking all those into considered~ I am of the settled opinion that the appeltant understood both •, ' ·, . . the charge and the facts constituting the offense and therefore applying , . .' the principles laid in: Rex Vs Yonasani EgahJ and Others (supra), he was properly convicted on his own plea. 7 I- Similar conclusion was also reached by the Court of Appeal of Tanzania in I • • • the case of Mathias Barua Vs Republic, Criminal Appeai No. 105 of 2015 (unreported) wh_ere the following· were observed: . ; . Since the facts, adduced established the ingredients of the offence/ the conv/ction was properly entered. The above said, I would have proceeded to dismiss the appeai in its entirety. However upon revisiting the sentence of four years imprisonment imposed to the appellant for1ah·offense of theft under section 258 of the Penal Code Cape 16 RE 2002,. I find the same to be excessive, In terms of section 170 (1) of the Crimina1l·Procedure Act (supra) a proper and legal I custodial sentence for theff·,a,~ a.n offense under the Minimum Sentencing Act Cap 90 RE 2002 anck which a subordinate court presided by a magistrate oth'er than a·

Senior Resident Magistrate of any grade or rank - . may pass, ought not I to exceed three years. Since the case whfch is a subject of this appea·1,was not presided over by Senior Resident Magistrate, a term of four years if11posed by th_e trial magist_rate was therefore beyond the mandate prescribed to him under the Minimum Sentencing Act. 8 . In the_ fine and for the reasons abov~, as the le~gth of the sentence was not among the grounds of appeal raised, I hereby invoke the revision powers conferred to this Court under section 373 (1) (a) of the Criminal . Procedure ·Act Cap 20 Revised Edition of 2002 by quashing and set aside the sentence of four years imprisonment imposed to the appe!la_nt. I instead substitute it to three (3) years imprisonment as from the date of