michael so malale vs republic 2022 tzhc 14866 28 november 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MWANZA DISTRICT REGISTRY

AT MWANZA CRIMINAL APPEAL No. 74 OF 2022 (Originating from Criminal case No. 156 of2022 of the District Court of Geita at Geita) MICHAEL S/O MALALE------------------ ------------------ APPELLANT

VERSUS THE REPUBLIC------------- ---------------------------- -RESPONDENT

JUDGMENT Last Order: 07.11.2022 Judgment: 28.11.2022 M.MNYUKWA, J. The appellant, Michael s/o Malale was charged and arraigned before the District Court of Geita at Geita for the offence of Rape contrary to sections 130(1), (2)(e) and 131(1) of the Penal Code Cap. 16 RE: 2019 (now RE: 2022). The prosecution alleged that, on the 8th June 2022 at Timbukareli area within the district and region of Geita, Michael Malale, the appellant did have carnal knowledge with a young girl aged three (3) years, who, for purposes of concealing her identity will be referred to, in this judgment, as the victim. i At the trial, the accused pleaded guilty to the charge and was accordingly convicted followed by a statutory minimum sentence of thirty (30) years imprisonment. Dissatisfied, the accused has lodged the present appeal before this court appealing against the conviction and the sentence. The accused fronted grounds of appeal thus:- 1. THA T, the appellant during a time of act or omission of the alleged offence he was of unsound mind, the court's failure to determine the unsettled mind of the appellant was led to unfair decision.

2. THA T, the court erred in law and fact as it sentenced a person under the age of 18 to serve a sentence of thirty (30) years c/s 131(2) (a-c) of the Penal Code Cap 16 RE: 2019.

3. THAT, the accused's confession at Police station of committing an offence of Rape was unjust as he was not aware of what he was confessing for, hence the investigator (Police officer) deprived his right of calling any person he wished during investigation (interview c/s 54(1) of the Criminal Procedure Act Cap 20, on failure for that failed to observe the unsettled mind mental (Mental disability of the accused. 2 When the matter was called for hearing, the appellant appeared in person unrepresented and Ms. Sabina Chonghoghwe represented the respondent, the Republic. It appears that, at the very opening of the hearing, Ms. Sabina got the attention of this court when she pray to address on the legal defect she observed on records of the trial court before submitting on the grounds of appeal, and the appellant had no objection and the prayer was duly granted. Ms. Sabina addressed on the legal defect that, the accused was convicted on his own plea of guilty which was equivocal. She claims that since the accused was convicted on his own plea of guilty, it was proper for the records of the trial court to show that the accused admitted all facts in each and every aspect which constitute the offence charged. Referring to the proceedings of the trial court dated 20.06.2022, she insisted that, after the accused pleaded guilty to the charge, the court was required to read the facts of

the case whereby on page 2 of the trial court proceedings it is not reflected. She insisted that, the facts are seen on the records but there is no any indication that the accused was given an opportunity to respond to them. Insisting, she cited the case of Onesmo Alex Ngimba vs R, Criminal Appeal No. 157 of 2019 where the Court of Appeal insisted that, on the plea of guilty, the accused is required to be asked to plead to each and every ingredient of the offence charged. She, therefore, maintains that, records do not show if the accused was given an opportunity to plea to the ingredients of the offence and therefore the plea was not clear therefore it was equivocal. For that reasons, she insisted that the accused was not properly convicted. She, therefore, prays for the case to be remitted back to the trial court for retrial. The appellant did not submit and prays this court to do justice. In the determination of the legal concern raised and addressed by Ms. Sabina, for the respondent, I perused the records and it is with no doubt that, the appellant was convicted by the trial court on his own plea of guilt. What is tasking as addressed by Ms Sabina is whether the appellant was properly convicted on his own plea of guilty. In law, for a plea of guilty to be valid for purposes of conviction without trial under section 228(2) of the Criminal Procedure Act, Cap. 20 RE: 2019, it

must meet the conditions set out by the Court of Appeal in the case of Michael Adrian Chaki v. R, Criminal Appeal No. 399 of 2017. In that case the Court stated that, there cannot be an unequivocal plea on which a valid conviction may be founded unless these conditions conjunctively exist: - 4 1. The appellant must be arraigned on a proper charge. That is to say, the offence, section and the particulars thereof must be properly framed and must explicitly disclose the offence known to law.

2. The court must satisfy itself without any doubt and must be dear in its mind, that an accused fully comprehends what he is actually faced with otherwise injustice may result.

3. When the accused is called upon to plead to the charge, the charge is stated and fully explained to him before he is asked to state whether he admits or denies each and every particular ingredient of the offence. This is in terms of section 228(1) of the CPA.

4. The facts adduced after recording a piea ofguilty should disclose and establish all the elements of the offence charged.

5. The accused must be asked to plead and must actually plead guilty to each and every ingredient of the offence charged and the same must be property recorded and must be dear.

6. Before a conviction on a piea of guilty is entered, the court must satisfy itself without any doubt that the facts adduced disclose or establish all the elements of the offence charged." 5 See also, Karlos Punda v. R, Criminal Appeal No. 153 of 2005 CAT, Onesmo Alex Ngimba vs Republic, Criminal Appeal No. 157 of 2019, CAT. Ms. Sabina addressed this court referring to the trial court's record specifically on page 2, that despite the proper record of the plea, it is not reflected on the records that, the facts were admitted or denied by the appellant as stated in section 228(2) of the Criminal Procedure Act, Cap 20 RE: 2019 (now 2022) and as it appears in item 4, 5 and 6 on the case of Michael Adrian Chaki (supra). Upon revisiting the records of the trial court, part of it reads as here under:- FACTS [IN CAMERA] 1. That the name and address of the accused is as per the charge sheet.

2. That, on O8/06/2022 the accused did rape one Angei Simon a giri aged three years old.

3. That after raping the victim the accused was arrested by civilians and taken to Geita Police Station.

4. That at Geita Police station the accused confessed to the commission of the alleged offence and the victim was taken to Geita Referral Hospital after a PF3 was issued to her and 6 she was medically examined and filed the PF3 confirming that the girt was raped.

5. That the PCF was taken to Geita Police Station and the charge sheet was prepared and today he is before the court and the accusedpleaded GUIL TY to the charge against him. SIGNED: C.F. Waane, PRM 20/06/2022 Court: AH facts are not disputed by the accused. From the above excerpt I agree with Ms. Sabina that, this was the one-sided party of the trial court narrating what happened as it appears and the appellant was not given a right to either admit or deny every stated fact as it is not reflected on the trial court records. Taking the wisdom stated in Hellena Adam Elisha @ Hellen Silas Masui vs Yahaya Shabani & Another, Civil Application No. 118/01 of 2019 referred with authority the case of Halphan Sudi vs Abieza Chichii [1998] TLR 257, that court records accurately represent what actually transpired in the court and should not be easily impeached. See also Paulo Osinya v. R [1959] EA 353 and Shabir F. A. Jessa v. Rajkumar Deogra, Civil Reference No. 12 of 1994 (unreported). From the excerpt of the trial court records above, I agree with Ms. Sabina that the accused was not asked to plead on every fact adduced as the same is not reflected in whether he admitted as stated for it 7 was not recorded. In totality, that is a fatal irregularity which goes to the root of the case and as a result, both proceedings, conviction and sentence against the accused is a nullity. That said and done, I proceed to nullify the proceedings, conviction and sentence of 30 years meted to the appellant Michael s/o Malale and in fine, I remit the case to the trial court to be tried afresh. M.MNYUKWA

JUDGE 28/11/2022 Court: Judgement delivered on 28th November 2022 in the presence of the appellant in person. M.

JUDGE 28/11/2022 8