CRIMINAL APPEAL NO 272 OF 2022

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LILA, J.A., KIHWELO. J.A. And ISSA. 3.AA CRIMINAL APPEAL NO. 272 OF 2022 PASCHAL DAUD @ MBITI...................................................... APPELLANT VERSUS THE REPUBLIC..... .................................. .......... ........ RESPONDENT (Appeal from the Judgment of Resident Magistrate's Court of Mwanza) (Nassary, SRM with Ext. Jurisdiction^ dated the 28th day of April, 2022 in RM Criminal Appeal No. 1 of 2022 JUDGMENT OF THE COURT 2&h & 28th February, 2025 ISSA, J.A.: In this second appeal, Paschal Daud @ Mbiti, the appellant challenges the decision of the Resident Magistrate's Court of Mwanza (the first appellate court) rendered on 28th April, 2022 whereby his appeal against conviction and sentence for the counts of burglary contrary to section 294(l)(a), (b) and (2) of the Penal Code, Cap. 16 and stealing contrary to section 265 of the Penal Code entered by the District Court of Kwimba at Ngudu (the trial court) in Criminal Case No. 80 of 2019 was dismissed save for the sentences which were ordered to run concurrently. The trial court convicted the appellant on his own plea of guilty and sentenced him to imprisonment for a term of 20 years for the first count and 4 years for the second count. The sentences were ordered to run consecutively. The charge against the appellant was as follows: "1st COUNT STATEMENT OF THE OFFENCE: Burglary c/s 294(l)(a), (b) and (2) o f the Pena! Code [Cap. 16 RE2002] PARTICULARS OF THE OFFENCE: That PASCHAL S/O DAUD @ MBITI charged on 2&h day o f February, 2019 at about 1.00 hr. at Mahiga village within Kwimba District in Mwanza Region did break and enter into a house of FAUSHNE S/O SHIJA with intent to commit an offence therein. 2nd COUNT STATEMENT OF OFFENCE: Stealing c/s 265 o f the Pena! Code [Cap. 16 RE 2002] PARTICULARS OF THE OFFENCE: That PASCHAL S/O DAUD @ MBITI charged on 28h day o f March, 2019 at about 01.30 hrs. at Mahiga village within Kwimba District in February Region did steal different clothes valued at Tshs 150,000/=, two pairs of shoes valued at Tshs 30,000/=, Tshs 37,000/=, all properties valued at Tshs 217,000/=, the properties o f FAUST1NE S/O SHIJA. STATION: NGUDU NGU/IR/312/2019" The appellant pleaded guilty to both counts and admitted the statement of facts when read over to him. Hence, the trial court convicted him for the offence of burglary and stealing and sentenced him to 20 years imprisonment for the first count and 4 years imprisonment for the second count as stated earlier. Aggrieved with that decision, the appellant instituted his appeal at the High Court of Tanzania at Mwanza which was transferred to the Resident Magistrate's Court of Mwanza (the first appellate court) and registered as RM Criminal Appeal No. 1 of 2022 which confirmed the findings of the trial court and dismissed the appeal, save for the mode of serving the sentence which were ordered to run concurrently. Undaunted, the appellant has instituted the instant appeal. Initially, he lodged a memorandum of appeal containing two grounds. Later on, he lodged a supplementary memorandum of appeal containing three grounds. The five grounds of appeal have been rearranged and rephrased and they read thus: 1. That the lower court erred in law and fact to convict the appellant by acting upon equivocal plea of guilty. 2. The trial and 1st appellate court erred in law and fact to convict the appellant by acting upon equivocal plea o f guilty occasioned by variation o f the particulars o f offence and the statement o f facts. 3. The charge-sheet was defective particularly on the second count It shows the incident took place in February Region which does not exist. 4. That the entire proceedings were a nullity as the presiding magistrate in the 1st appellate court did not have authority to preside over the case. 5. The prosecution failed to prove the offence beyond reasonable doubt When the appeal was called on for hearing, the appellant was present in person unrepresented. Upon enquiry, he adopted his grounds of appeal and opted for the respondent Republic to submit first and to rejoin later if need arises. The respondent Republic, on the other hand, had the services of Ms. Dorcas Akyoo, learned Principal State Attorney assisted by Mr. Deogratius Rumanyika, learned State Attorney. Arguing the 1st and 2nd grounds of appeal, Ms. Akyoo argued that the plea of guilty with respect to the 1st count was proper and there was no defect. The appellant admitted breaking into the house of Shija at Night. She added that the facts of the case were read and the appellant admitted them, hence, the plea was unequivocal. With respect to the second count she admitted that the plea was equivocal. She submitted that the charge shows that the appellant stole clothes worth TZS. 150,000.00, shoes worth TZS. 30,000.00 and cash TZS. 37,000.00, but in his plea he admitted stealing only clothes. The shoes and cash money were not included. Therefore, the plea was unfinished hence, it makes the plea equivocal. She concluded that a correct way to cure the anomaly is to remit the file to the trial court so that the appellant could plead and case be heard on the second count. The Court probed Ms. Akyoo on whether the appellant admitted all the ingredients of the offence of burglary as seen in the provision creating the offence. Ms. Akyoo was quick to respond that, there are three ingredients for the offence of burglary, but the appellant, in his plea, touched two ingredients which in law do not make the offence of burglary. She concluded that the plea for the 1st count was also equivocal. She urged the Court to nullify the proceedings and return the file to the trial court for trial. In the determination of these two grounds of appeal, the Court will address two issues: one, whether the appellant was entitled to appeal against his own plea of guilty and two, whether the plea was equivocal. With respect to the first issue, the law is very clear and section 360 (1) of the Criminal Procedure Act, Cap. 20 (the CPA) lays down a general proposition which goes thus: "360 (1) An appeal shall not be allowed in the case of any accused person who has pleaded guilty and has been convicted on such piea by a subordinate court except as to the extent or legality o f the sentence." The above provision is the general rule. However, under certain circumstances an appeal may be entertained notwithstanding a plea of guilty. This was well stated in the celebrated case of Laurence Mpinga v. The Republic [1983] T.L.R. 166 which has since been followed by several cases of the Court such as: Ramadhani Haima v. The Republic, Criminal Appeal No. 213 of 2009 (unreported), Josephat James v. The Republic, [2012] TZCA 159, TANZLII and Frank s/o Mlyuka v. The Republic (supra). Those circumstances are: - 1. that, even 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 o f guilty; 2. that he pleaded guilty as a result o f mistake or misapprehension; 3. that the charge laid at his door disclosed no offence known to law; and 4. that upon the admitted facts he could not in law have been convicted of the offence charged. In the instant appeal, the appellant is faulting the two lower courts for convicting him on the basis of equivocal plea which was unfinished and that upon admitted facts the appellant could not have been convicted for the offence charged. We shall explain, but we feel first we should let the records do the talking. Part of the proceedings of 20th March, 2019 read thus: "COURT: Charge is read over and well explained to the accused person who plead thereto. Accused Plea: 1st Count: "It is true, I broke the house o f Faustin Shija at Night around 1.00 hours." 2nd Count: "It is true, I stole clothes o f Faustin Shija" Court: Entered as a plea o f guilty to both counts Sgd. Facts: That, on 28.02.2019 at 01.00 hrs at Mahiga village accused broke the house o f Faustin Shija and stole various clothes valued Tshs 217,000/= he was arrested and brought to Ngudu police station later to this court: admitted. Accused signature...... Sgd. PP's Signature....... Sgd. Court............Sgd. Court Findings: When the charge was read over to the accused person so as to enter his piea, he entered a piea o f guilty the facts were read where he admitted the entire facts, I have no doubts that the piea o f guilty entered is unequivocal. I hereby find accused person guilty o f the offence and convict him on his own plea o f guilty. Sgd. Previous Records: Accused is habitual offender, he was convicted in Criminal Case No. 78/19 and Criminal Case No. 79/19 where he was sentenced to four (4) years and 20 yrs respectively. I pray for a stiffpunishment. Mitigation: I pray for leniency. Sentence: Having consider that the accused person is the habitual offender he was convicted and sentenced in Criminal Case No. 78/19 and Criminal Case No. 79/19 to serve four (4) years and 20 yrs respectively. I hereby sentenced him to serve twenty years (20) in jail for 1st count and four years (4) in jail for the 2nd count. Sgd. " Starting with the first count, the appellant was charged with burglary contrary to section 294(1) (a) (b) and (2) which provides: "(1) Any person who - (a) breaks and enters any building, tent or vessel use as a human dwelling with intent to commit an offence therein or (b) having entered any building, tent or vessel used as human dwelling with intent to commit an offence therein or having committed an offence in the building, tent or vessel, breaks out o f it, is guilty o f house breaking and is liable to imprisonment for fourteen years. (2) Where an offence under this section is committed in the night, it is burglary and the offender is liable to imprisonment for twenty years" The offence of burglary under this provision has three ingredients: (i) break or entering into the building, tent or vessel used as human dwelling, (ii) intent to commit an offence and (iii) the offence must be committed at night. Now, the question is whether upon looking at the above plea of the appellant, can it be safely vouched that the appellant has unequivocally pleaded guilty to the charge of burglary. The answer is no. The appellant admitted only two ingredients of the offence and his plea was: "It is true, I broke the house o f Faustin Shija at Night around 1.00 hours." It was expected that he would go a step further and state all the ingredients of the offence of burglary. (See - Juma Mohamed v. The Republic, Criminal Appeal No. 272 of 2011 and Safari Deemay v. The Republic, Criminal Appeal No. 269 of 2011 (both unreported). In the latter case the Court observed: 11Great care must be exercised especially where an accused is faced with a grave offence like the one at which attracted life imprisonment. We are also o f the settled view that it would be more ideal for an appellant who has pleaded guilty to say more than just, It is true". A trial court should ask an accused to elaborate in his own words as to what he is saying "is true"." Similarly, the defunct East African Court of Appeal in Adan v. The Republic, [1973] E.A. 446 laid down the requisite procedure desirable to be followed by the courts. It stated: "When a person is charged, the charge and particulars should be read out to him, so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand. The magistrate should then exptain to the accused person all the essential ingredients of the offence chargedLI f the accused then admits all those essential elements the magistrate record what the accused has saidf as nearly as possible in his own wordsf and then formally enter a plea of guilty. The magistrate should next ask the prosecutor to state the facts o f the alleged offence and, when the statement is complete should give the accused an opportunity to dispute or explain the facts or to add any relevant facts if the accused does not agree with the statement of facts or asserts additional facts whichf if true, might raise a question as to his guiltf the magistrate should record a change of plea to not guilty and proceed to hold a fra///(Emphasis supplied). (See also Yeremia s/o Jonas Tehani v. The Republic [2020] TZCA 65, TANZLII). Therefore, in the circumstances of the instant case, we agree with Ms. Akyoo that one ingredient of the offence of burglary, namely: "the intent to commit an offence" was missing. Hence, the plea was imperfect and unfinished and upon the admitted facts the appellant could not in law have been convicted of the offence charged. On the second count, the appellant was charged with the offence of stealing and the particulars of offence in the charge-sheet which was produced earlier, the appellant was alleged to have stolen clothes, two pairs of shoes and cash money. But, if we examine the plea of the appellant in the proceedings produced above. He said: "It is true, I stole clothes ofFaustin Shija" The appellant admitted only one item in the charge-sheet. It was expected that the appellant would mention all the items he has stolen in Shija's house. Therefore, the plea was imperfect and unfinished. Consequently, going by the decisions in Mpinga (supra) and Josephat James (supra) the appellant's plea was "imperfect and unfinished" and upon the admitted facts cumulatively he could not in law have been convicted of the offence charged. Therefore, for these reasons the trial court erred in treating them as unequivocal plea of guilty. All said and done, the cumulative effect of the above findings is that there is merit in this appeal. We quash and set aside all the proceedings, conviction and sentences imposed on the appellant by the trial court and confirmed by the first appellate court. In view of our findings on these two grounds of appeal, the discussion on the remaining grounds will be academic and we desist from taking that path. On the way forward, Ms. Akyoo insisted that the file should be remitted to the trial court to enable the appellant to plea. The Court probed her to consider the circumstances of the case that the appellant has been in custody for the past six years and whether justice would be served by taking him to face the trial again. Ms. Akyoo was adamant that the appellant was a habitual offender. In fact, this fact was put forward by the prosecutions after the appellant had pleaded guilty. The next question is whether the trial court had satisfied itself that the appellant was a habitual offender. Glancing at the proceedings produced above, the prosecutions casually submitted as follows: "Accused is habitual offender, he was convicted in Criminal Case No. 78/19 and Criminal Case No. 79/19 where he was sentenced to four (4) years and 20 yrs respectively. I pray for a stiff punishment." This submission leaves a lot to be desired. We do not know in which court the appellant was tried and what was the offence he was tried for. Further, the trial court did not record that it made a follow up to satisfy itself on the existence of those cases. Even worse, the appellant was not asked to give explanation regarding those cases. Therefore, we cannot safely conclude that the appellant was a habitual offender. Having that in mind, we are of the view that this is not a fit case to remit the record to the trial court for trial to be commenced against the appellant. We are satisfied that, the time spent in prison is sufficient and we hereby order his immediate release from prison unless he is being held for other lawful cause. DATED at MWANZA this 27th day of February, 2025. S. A. LILA JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 28thday of February, 2025 in the presence of the Appellant in person and Mr. Christopher Olembile, learned State Attorney for the respondent/Republic is here by certified as a true copy of the original. D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL