SANYIWA JDG for TANZLII

Page |1 IN THE HIGH COURT OF TANZANIA GEITA SUB-REGISTRY AT GEITA CRIMINAL APPEAL NO. 29885 OF 2024 (Original Criminal Case No. 7606 of 2024 from Mbogwe District Court at Mbogwe before Moshi PRM) LAUREN S/O SANYIWA--------------------------------------------------APPELANT VERSUS THE REPUBLIC -------------------------------------------------------RESPONDENT JUDGMENT Date of last Order: 08/11/2024 Date of Judgment: 20/11/2024 K. D. MHINA, J. In the District Court of Mbogwe at Mbogwe, the appellant, LAURENT s/o SANYIWA, was convicted on his own plea of guilty of the offences of Stealing contrary to sections 258 (1) and 268 of the Penal Code, Cap 16 R.E. 2022, Stealing contrary to sections 258 (1) and 268 of the Penal Code, Cap 16 R.E. 2022 and Unlawful possession of goods stolen contrary to sections contrary to sections 312 (1) (b) of the Penal Code, Cap 16 R.E. 2022. These were the 2nd, 3rd and 4th counts, respectively. Page |2 He was sentenced to serve two (2) years in prison for the 2nd count, one (1) in prison for the 3rd count and again, one (1) year in prison for the 4th count. Further, the trial court's record reveals that the appellant pleaded not guilty to the 1st count of burglary contrary to 294 (1) (a) (b) and (2) of the Penal Code, Cap 16 R.E. 2022. Dissatisfied, the appellant lodged the present appeal grounded on the following complaints as shown in the memorandum of appeal; 1. “The plea of guilty was incomplete and unknown to all counts as per page 2 of the copy of Judgement, and it shows DW1 pleaded guilty to unknown counts; on the last page of the copy of the judgement, DW1 was convicted of 2nd, 3rd and 4th unknown counts and nowhere it was shown that DW1 pleaded not guilty to the 1ST unknown count. Hence unknown and incomplete plea to the charges before me. 2. The Trial court Magistrate erred in law and fact to warrant conviction and sentence while evidence and statements were hearsay evidence/statements for instance, a person/police officer who arrested DW1 was unknown or stated, a place where DW1 was arrested was unknown place, and this was due to the fact that, they stated on page 02 last paragraph of Page |3 the copy of judgement that DW1 disappeared after stealing, so where did they catch him?. Hence, a cooked case. 3. The trial court magistrate erred in law as to the fact that he did not comply with section 312(2) of the Criminal Procedure Act Cap 20 (R.E. 2022), as seen on pages 05 and 06 of the copy of the judgment. 4. The trial Court magistrate erred in law by upholding the conviction and sentence despite the charge not being proved against the appellant to the standard required by law”. At the hearing of the appeal, the appellant, via video link from Kahama Prison, appeared in person and adopted the grounds contained in the memorandum of appeal without more. Ms. Kabula Benjamin and Mr. Robert Neofitus, learned State Attorney, appeared for the respondent/Republic, who strongly resisted the appeal. Resisting the 3rd and 4th grounds of appeal, Mr. Neofitus stated that the grounds were immaterial because there was no judgment delivered by the trial court. This is because the appellant pleaded guilty; therefore, there were only proceedings for the plea of guilty. On the 1st ground, he submitted that the appellant's plea before the trial court was proper. Page |4 He explained that at page 2 of the trial court’s proceedings, it was indicated that the charge sheet was read to the appellant in the language he understood, and he pleaded guilty to the 2nd, 3rd and 4th counts. The appellant pleaded guilty to stealing and being found with stolen properties. After he pleaded guilty, the facts for each count were read to the appellant, who admitted those facts without qualification. Therefore, the plea was proper, and the appellant fully understood the offences. In his further submission, Mr. Neofitus stated that the law clearly states that no appeal should lie against an equivocal plea of guilty. To substantiate his submission, he cited the case Joel Mwangambako vs Republic (Criminal Appeal 516 of 2017) [2020] TZCA 1880 (27 November 2020) (Tanzlii) at pages 8-9 and Masanja s/o Misalaba vs Republic (Criminal Appeal No. 363 of 2016) [2019] TZCA 474 (11 December 2019) (Tanzlii). The same provision was also dictated by section 360 (1) of the Criminal Procedure Act, Cap 20 R: E 2022. Therefore, he argued that in the instant appeal, the appellant's plea was proper. Page |5 Regarding ground 2, Mr. Neofitus submitted that the appellant’s conviction was from his own plea of guilty. Therefore, there were no witnesses who testified at the trial. Upon examination of the record of appeal and having gone through the grounds of appeal and submission by the republic, I will start with the 2nd,3rd and 4th grounds of appeal; they are intertwined. On the 2nd ground, the appellant complained that as per the “judgment”, he was convicted based on the hearsay evidence/ statements. On the 3rd ground, he complained that there was non-compliance with section 312 (2) of the CPA. For clarity, section 312 (1) of CPA is the provision that deals with the contents of the judgment. It reads that; “312.-(1) Every judgment under the provisions of section 311 shall, except as otherwise expressly provided by this Act, be written by or reduced to writing under the personal direction and superintendence of the presiding judge or magistrate in the language of the court and contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer as of the date on which it is pronounced in open court”. Page |6 The above grounds of appeal should not detain me long. As rightly submitted by Mr. Neofitus, the trial court proceeded to read the facts constituting the offences after the appellant pleaded guilty. Therefore, no witnesses were summoned to testify after the appellant pleaded guilty, and no judgment was delivered by the trial court. This is a position of law that when the accused person pleads guilty to the offence charged, the court is required to state the facts constituting the offence to the accused person. If the facts are admitted without qualification, then the accused is convicted for his own plea of guilty, and the court shall proceed with the sentencing procedure. Thus, there is no requirement to summon the witnesses to testify and for the trial court to compose a judgment. The Court of Appeal in Michael Adrian Chaki vs Republic (Criminal Appeal 399 of 2019) [2021] TZCA 454 (9 September 2021) (Tanzlii), held that; “In a situation where the accused admits the allegations in the charge, it is a deep-rooted and invariable practice that the responsibility is on the prosecution to state facts establishing the allegations in the charge. In short, a plea of guilty relieves the prosecution the Page |7 burden of calling witnesses to prove the charge but it does not relieve them from narrating facts correctly”. [Emphasis provided] Therefore, the 2nd and 3rd grounds of appeal are not only devoid of merits but also misconceived. Thus, the grounds are dismissed. Now, reverting to the 1st and 4th grounds of appeal, which are crucial in the determination of this appeal, I will start by citing the cited decision of Michael Adrian Chaki (Supra), where it was held that; “Generally, a person convicted of an offence on his own plea of guilty is barred from appealing against conviction. He can only appeal against the extent or legality of the sentence imposed. That is in terms of section 360(1) of the Criminal Procedure Act, Cap. 20 R. E. 2019 (the CPA). That strictness of the law notwithstanding, courts have taken cognizant of certain circumstances which may render a plea equivocal, whence a conviction on one's plea of guilty may successfully be challenged by way of an appeal”. Therefore, from the above-cited case, no appeal shall lie against the plea of guilty; however, under certain circumstances, an appeal arising thereof may be entertained by an appellate court. The circumstances may include where the appellant pleads guilty as a result of a mistake or misapprehension, the charge levelled against him discloses no offence Page |8 known to the law, the plea is imperfect, ambiguous or unfinished, and whereupon the admitted facts, the appellant cannot in law be said to have been convicted of the offence charged. See Joel Mwangambako and Masanja Misalaba (Both supra) and Laurent Mpinga V.R. [1983] TLR 16. In the 1st ground of appeal, the appellant complained that he was convicted for the 2nd, 3rd and 4th “unknown” counts. While in the 4th ground, he complained that he was convicted and sentenced despite the charge not being proved to the standard required by the law. Though the appellant failed to explain how the counts were unknown to him, having gone through the records, I see no existence of ambiguity, mistake or misapprehension of the appellant’s plea of guilty. The record reveals that on 23 September 2024, the appellant was arraigned before the trial court, where the charge was read to him. It is indicated as follows: Page |9 “COURT; The charge read well to the accused person with a language he understands and has the following to say, FIRST COUNT IT IS TRUE I BREAK A HOUSE WITH INTENTION TO STEAL SECOND COUNT IT IS TRUE AFTER I BREAK THE HOUSE, I STOLE POS MACHINE THIRD COUNT IT IS TRUE I STOLE DIFFERENT TYPES OF CLOTHES AND SHOES. FOURTH COUNT IT IS TRUE I WAS FOUND WITH POSSESSION OF STOLEN PROPERTIES. COURT: PLEA OF GUILTY IS ENTERED”. Having indicated as above, it is clear that the offences were read and explained to the appellant, who pleaded guilty in respect of both four counts. However, later, the trial court, after the appellant responded to the facts, entered a plea of not guilty for the 1st count. From above, I have the following; P a g e | 10 One, having examined the counts to which the appellant pleaded guilty, discloses the offences known to the law. Two, nowhere in the record is it shown that the appellant suffered any language barrier to follow proceedings before the trial Court. When he was asked to plead to the charge and when responding to the facts outlined by the prosecution, he responded with full knowledge of what the offences were and the facts of the facts. From above, the question is now whether the facts which the appellant admitted proved the offences convicted? In the cited case of Michael Adrian Chaki (Supra), the Court of Appeal held that; “Actually, the facts narrated are in lieu of 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”. [Emphasis provided] At the trial, the facts were as follows; “FACTS U/ 192 OF CPA P a g e | 11 Name and address of the accused are to remain as per the charge sheet That accused is a resident of Nyanwigwa village within MBOGWE DC, On 11/9/ 2024 night hrs was at Nyanwiga village, and he entered in Juma Lungwecha’s house with intention to commit the offence therein. After entering the house, he stole a POS machine with no 16/ 2024 valued at Tsh 649,000/ a property of Mbogwe council. The accused also stole Juma Lungwecha's clothes, which had a total value of TSH 365,000/. After stealing, the accused disappeared. On 18/9/2024 accused was arrested and sent to Masumbwe police. And that accused show the stolen properties pos machine 16/ 2024. IMEI NO 857560045757924 AND 867560045757932 green colors. Three jeans, white jeans coat, yellow t-shirt, white shoe rubber, 2 chargers and one wallet. The process of seizure the properties was conducted and sent to police for further interrogation. On 18/9/2024 accused cation statement was recorded from 4;00 up to 5;15 pm by H 4932 DCPL GILYA where he admitted to commit both offences. And today he pleaded guilty to the charge. P a g e | 12 COURT: The accused is called upon to plead on facts, ACCUSED: I admit all facts by prosecution side that I broke the house with intention to still therein and I stole POS machine and clothes as stated on a charge”. As can be gleaned from the proceedings, I hasten to find that the complaint by the appellant is without merit. The facts clearly disclosed that on 11 September 2024, he stole the POS machine and clothes from one Juma Lungwecha. Further, on 18 September 2024, he was found with the stolen POS and clothes. Therefore, the facts which the appellant admitted were evidence in lieu and, in my view, by way of facts, proved the counts to which the appellant pleaded guilty. From the above discussion, it is, therefore, the 1st and 4th grounds of appeals are devoid of merits. The appellant’s plea was not ambiguous and the narrated constituted and proved the offence convicted. P a g e | 13 On the basis of the foregoing reasons, based on the grounds of appeal, the appellant failed to persuade this court to interfere with the trial court’s findings. I, therefore, find the appeal to have no merit. I hereby dismiss it. It is so ordered. K. D. MHINA JUDGE 20/11/2024 Court: Right to appeal explained. K. D. MHINA JUDGE 20/11/2024