CRIMINAL APPEAL NOMUSTAPHA SEIF LIVIGA NEWNEWNEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MTWARA SUB-REGISTRY AT MTWARA CRIMINAL APPEAL NO 88 OF 2023 (Originating from the District Court of Nanyumbu at mangaka in Criminal Case No. 148 of 2021) , MUSTAPHA SEIF LIVIGA ............................ APPELLANT VERSUS THE REPUBLIC........ ............ .............RESPONDENT JUDGMENT Date oflast Order: NJh November2023 Date ofJudgment: 29t' November 2023 .• LALTAIKA, J. The appellant herein MUSTAPHA SEIF LIVIGA was arraigned in the District Court of Nanyumbu at Mangaka charged with one count of Theft contrary to section 258(1) and 265 of the Penal Code Cap 16 RE 2019. It was the prosecution's story that on 14/11/2021 at 21:00 in .... . Mchangani Area of Mangaka, Nanyumbu District, Mtwara Region the appellant stole a motorcycle make HAOJUE black in color with Registration Number MC 594 CZD and chassis number LC6PC1K22M0078405 and engine Page 1 of 7 number 156 FMI-5A*D3F04451* valued atTZS 2,500,000/“ property of one Shabani Exavery Ngundi. When the charge was read over and explained to the appellant, he pleaded guilty. He was convicted on his own plea and sentenced to 5 years imprisonment. Dissatisfied, the appellant has appealed to this court by way of a petition of appeal containing three grounds. In spite of the grammatical and typographical errors, I choose to reproduce them hereunder for ease of reference and record keeping purposes. 1. The learned trial Magistrate erred in both law and fact by convicting the appellant basing or by considering the plea of guilty which was a result of misapprehension or mistake as he had not understand the nature of the plea or offence as well as the gravity of the offence and its punishment, 2. The learned trial Magistrate erred in both law and fact by convicting the appellant while the Admitting the exhibit P2 s \ which is the caution statements of the accused and acting. f . upon it while such exhibit was admitting contrary to the law Ji '•/?. x % y1 as it was not cleared for admission as well it was not read out loudly as the requirement of section 210 (3) of CPA Cap 20 RE 2019. 3. The learned trial Magistrate erred in both law and fact by convicting the appellant with the offence of theft while no Page? of 7 exhibit was tendered before the court oflaw to prove that the said motorcycle was found in the hand of the appellants. When the appeal was called on for hearing, the appellant appeared in person, unrepresented. The respondent Republic, on the other hand, appeared through Mr. Melchior Hurubano, learned State Attorney. .y;. C. • ■>.*. The appellant indicated that he did not wish to add anything to the elaborate grounds of appeal. However, he reserved his right to a rejoinder in case the need arose. T h, < Mr. Hurubano, the learned State Attorney, stated that he would S;-.. >!' address only the first ground, as the second and third grounds are barred by X. section 360(1), which prohibits an appeal against conviction due to pleading fr, ’Si guilty. z W Regarding the first ground, which claimed that the guilty plea was due to a misunderstanding or mistake, the appellant asserted being scared by the police, a claim Mr. Hurubano agreed with. He argued that such threats had no bearing on the appellant's knowledge of the offense to which he had pleaded guilty. Referring to page 1 of the trial court proceedings, Mr. Hurubano pointed out that the court had explained the details, and the appellant had responded by confessing to stealing a motorcycle with specific Page 3 of 7 registration details. He expressed conviction that the appellant was fully aware of what he was confessing and found it difficult to accept the story that he was beaten by the police and forced to memorize the details of the stolen moto rcycle. '";■■■» Mr. Hurubano maintained that the assertion that the plea was due to police threats was an afterthought. He argued that the plea met all the requirements, citing the famous Court of Appeal of Tanzania's decision in Michael Adrian Chaki v. R. Criminal Appeal No 399 of 2019. He noted that a proper charge was read over to the appellant, including all elements of the offense of theft, as clarified by the Court of Appeal of Tanzania in the case of DPP V. SHISHIRI SHYAMSINGH Crim Appeal No 141 of 2021 CAT, Kigoma. Z t' '!$. " The learned State Attorney emphasized that the charge was explained to the accused person, and the facts were read out loud as documented on page 2 and 3 of the proceedings. The appellant, averred Mr. Hurubano, had accepted all facts, as recorded on page 4, stating, "Your honor, all the facts adduced by the prosecution side are true and correct, and so I admit them." Page 4 of 7 Mr. Hurubano mentioned that the cautioned statement was tendered, though not necessary, to show that the prosecution had additional evidence. During mitigation, averred the learned State Attorney, the appellant prayed for lenience. Mr. Hurubano concluded that the claims were baseless, and he prayed for the entire appeal to be dismissed for lack of merit. ' The appellant, in his brief rejoinder submission, expressed a desire to be very honest and stated that he had never committed the offense. He .A" ■J? asserted that he was never found with the stolen motorcycle and attributed any involvement to ignorance. He concluded by stating that there was nothing he knew about the allegation. I have dispassionately considered the grounds of appeal, submission by the learned State Attorney objecting to them and the arguments advanced by the appellant. This court and the apex Court have insisted several times on the dangers of conviction based on plea of guilty. Authorities to that effect are too numerous. X Tn the matter at hand, I have no iota of doubt that the plea was equivocal. The way it is recorded makes it extremely doubtful if the appellant did indeed utter such words. There is no way the appellant, a young and Page 5 of 7 timid fellow, would say so precisely that he had stollen a motorcycle with "Registration Number MC 594 CZD and chassis number LC6PCJK22M0078405 and engine number 156FMI-5A*D3F04451* valued at TZS 2,500,000/= property of one Shabani Exavery Ngundi." I also disagree with the argument that by tendering the cautioned statement even if it was not needed, the prosecution indicated that they had sufficient evidence had the appellant chose to enter a plea of not guilty. It appears that the opposite is true. This is the reason as to why I cannot order a retrial. In the upshot, I allow the appeal. I hereby quash conviction, set aside the sentence. Furthermore, I order that the appellant MUSTAPHA SEIF LIVIGA be released from prison forthwith unless he is being held for any other lawful purpose. It is so ordered. Page 6 of 7 Court Judgment delivered under my hand and the seal of this court this 29th day of November 2023 in the presence of Mr. Steven Aron Kondoro, learned State Attorney, and the appellant who has appeared in person, E.I. LALTAIKA JUDGE 29.11.2023 The right to appeal to the Court of Appeal of Tanzania is fully explained. E.I. LALTAIKA JUDGE 29.11.2023 Page 7 of 7