Criminal Appeal 34 of 2023 Judgmnet Mrisha J

IN THE HIGH COURT OF TANZANIA (IN THE DISTRICT REGISTRY OF SUMBAWANGA) AT SUMBAWANGA CRIMINAL APPEAL NO. 34 OF 2023 (Originated from the District Court of Nkasi at Namanyere in Criminal Case No. 177 of 2022) MARCO SHIJA................................................................................APPELLANT VERSUS THE REPUBLIC.............................................................................. RESPONDENT JUDGMENT 21s October & 11th December, 2024 MRISHA, J. This appeal is originated from the decision of the District Court of Nkasi at Namanyere, in Criminal Case No. 177 of 2022 henceforth the trial court where the appellant Marco Shija, was charged with one count of Stealing contrary to section 258 (1) and 265 of the Penal Code [Cap 16 R.E. 2022] (to be referred to as the Penal Code). It was alleged that on 09th day of October, 2022 at Ntalamila village within Nkasi District in Rukwa Region, the appellant did steal one Motor cycle with Reg. No. MC 672 DHF make Kinglion with Chassis No. LZL15P906NHA44902 and Engine No. KL162FMJ220144902 valued at Tshs. 2,500,000/=, the property of Godfrey Kauzeni. 1 The records of the trial court reveal that when the case was presented before the District Court (the trial court) for the first time on 19th day of October, 2022 the charge was read over and explained to the appellant who pleaded guilty to the offence charged. Subsequently, the facts were read over and explained to the appellant who admitted all facts read to him by the Public Prosecutor, thus the appellant was convicted on his own plea and sentenced to serve a term of five (5) years imprisonment. Aggrieved by the above decision and sentence, the appellant thus, appealed to this court by filing a memorandum of appeal which contain a total four grounds as shown hereunder: 1. That, I did not commit the serious offence as established by the crown prosecution side. 2. That, the trial court totally erred on point of law in convicting the appellant relying on plea of guilty for the appellant while mis observed that the offence with which the appellant faced was a serious one thus resulting to a full trial to be conducted and he was not given an opportunity to ask or add anything relevant. 3. That, the trial court erred in law and fact by convicting and sentencing the appellant basing on a plea of guilty for the appellant only while mis 2 observed that it failedaa to record exactly the words used by the appellant in pleading. This is contrary to section 288 (1) and (2) of the Criminal Procedure Act. 4. That, the charge sheet is not displayed into record (proceedings) of the trial court, therefore no proper procedure for recording the plea of guilty was fulfilled. My lord Judge, the proper procedure for recording a plea of guilty has been elaborated by several courts. Please refer the case of Rep v/s Masoud S/o Peter @ Ngereja Dotto H/C of (T) at Tabora Cr. Appeal No. 205 of 2014, Adan v/s Rep (1973) E. A 445, Misago s/o Shautiel v/s Rep, Cr. Appeal No. 250 of 2007 (all unreported). This shows that the plea of guilty for the appellant was equivocal plea. When the appeal was called on for hearing, the appellant appeared in person, unrepresented, whereas the respondent Republic was represented by Mr. Jerrinus Mzanila and Ms. Ashura Ally Pazi, both learned State Attorneys. The appellant prayed to adopt his memorandum of appeal in order to form part of his submission in chief and also, he prayed to this Court to consider his grounds of appeal, allow his appeal and set him free in order to join his family. In reply, Mr. Jerrinus Mzanila, supported both the conviction and sentence issued by the trial court and prayed to this court to uphold the conviction and sentence 3 imposed by the trial court. In demonstrating his position, he submitted that the appellant was charged with the offence of Stealing contrary to 258 (1) and 265 of the Penal Code. On 19th October, 2022 when the charge was read over and explained to him, the appellant took a plea and pleaded guilty to the offence charged thereof. The appellant pleaded by saying that he stole the motorcycle and he has it, after his plea of guilty was entered, the facts were read over and explained to him and he admitted all the facts incriminating him, and proceeded to sign his acknowledgement as to the correctness of those facts. To support his contention, Mr. Mzanila referred to page 3 of the trial court typed proceedings. He clarified that since the trial court records show that the appellant unequivocally pleaded guilty to the charged offence, then the appellant has no room to appeal against his conviction; the only remedy for him was to appeal against the sentence. He cited the provisions of section 360 (1) of the Criminal Procedure Act, CAP 20 R.E. 2022 (the CPA) to cement his submission. Finally, he urged this court to dismiss the appellant’s appeal and upheld the conviction and sentence passed by the trial court. Having carefully considered the submissions made by both parties and perused the trial court’s records; let me proceed with the determination of the merit of 4 this appeal and in doing so, I will focus on whether the appellant’s appeal has merit. I have judiciously heard the submissions by both parties in relation to this appeal. I have also gone through the trial court proceedings and findings just to get a clear picture of what the appellant is complaining of. Having done so, I have reached to a conclusive finding that the trial magistrate properly recorded the appellant’s plea and went on to afford the appellant with an opportunity to comment on the correctness or otherwise of the facts which were read over and explained to him by the Public Prosecutor. Hence, I share the same view with Mr Mzanila that there was nothing wrong with the appellant’s plea. It is clear from page 2 of the trial court typed proceedings, that the appellant pleaded guilty to the offence of Stealing contrary to section 258 (1) and 265 of the Penal Code. It is also clear and undisputed that after the trial court had entered his plea of guilty, the appellant was given a chance to air out his comments about the alleged facts, and the records show that he certified to the trial court that all that was read to him was correct and he admitted to it. 5 That entails that the trial magistrate properly complied with the procedure of recording the accused’s plea as provided under section 228 (1)(2) of the CPA, which tells that the appellant’s plea is an unequivocal plea. I am of the considered view that since the appellant’s plea was unequivocal as indicated above, then I cannot fault the trial magistrate who relied on it to ground a conviction against the appellant. During trial, if appears that after the charge was read over and properly explained to the appellant in a language clearly understood to him, the trial magistrate gave him a chance to plead to the charged offence and in the course of responding to such question the appellant, at page 2 of the typed trial court’s proceedings, was quoted to have said that: "It is true I did steal the said motorcycle and up to now I have it” At this juncture, it does not need any reasonable man to use much energy to arrive at a conclusive finding, which I also subscribe, that the above appellant’s plea was clear and unequivocal. I have also gone through the facts read over and properly explained to the appellant and observed that the same constitute the offence of Stealing to which the appellant herein stood charged before the 6 trial court. It is due to the reasons which I have endeavoured to assign above, that I sustain the conviction entered against the appellant. Since, section 360 (1) of the CPA prohibits an appeal in cases where the accused was convicted on his own plea of guilty except on the extent or illegality of the sentence, I am satisfied that the appellant’s act of challenging his plea of guilty and conviction, is contrary to the law. In John Samwel @Kabaka and Another v Republic, Criminal Appeal No. 58 of 2005 CAT (unreported), the Court of Appeal considered an appeal on a plea of guilty and observed that: "The appellants' plea being unequivocal, they were correctly convicted on their own plea of guilty. It would follow that no appeal would lie on a plea of guilty. In this case, the appellants having been convicted on their unequivocal plea of guilty cannot now be heard to complain about the conviction.” [emphasise is mine]. Indeed, I satisfied that in the present appeal, the prosecution facts constituted offence of Stealing contrary to section 258 (1) and 265 of the Penal Code. I also satisfied that the appellant pleaded guilty unequivocally because he accepted the 7 prosecution facts as being true. He furthermore, pleaded in mitigation that he prays for forgiveness from the complainant whom he stole his motorcycle. He also prayed for forgiveness from the court that he will not repeat again. In this respect, claiming that he did not commit the offence was alleged by prosecution side, in my considered opinion, is not true, rather it is an afterthought. Therefore, I find grounds number 1, 2, 3 and 4 of the appellant’s memorandum of appeal to be unfounded and I dismiss them for want of merits. It is so ordered. A.A. MRISHA JUDGE 11.12.2024 DATED at SUMBAWANGA this 11th day of December, 2024. A.A. MRISHA JUDGE 11.12.2024 8