20161216 TZHC Dar es Salaam

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IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISRICT REGISTRY) AT DAR ES SALAAM. CRIMINAL APPEAL NO. 149 OF 2016 {Originating from Criminal Case No. 217 of 2014 of Temeke District Court) RASHID ALLY SULTAN .......................... APPELLANT

VERSUS THE REPUBLIC ..................................... RESPONDENT : Date of Last Order: 24/10/2016. Date of Judgment: 16/12/2016.

JUDGMENT I. ARUFANI, J. The appellant, namely Rashid Ally Sultan was charged in the District Court of Temeke with twenty seven counts of obtaining money by false pretence contrary to section 302 of the Penal Code, Cap 16 R.E 2002 and one count of stealing by servant contrary to section 271 of the Penal Code, Cap 16 R.E 2002. The brief facts of this case as can be found in the record of the trial court are to the effect that, the appellant was employed by AL - HIKIMA secondary school as a teacher of science subjects \ ,, . and he was promoted up to the post of Headmaster of the school. By virtue of his post in 2014 he was required to interview and register the students who were being enrolled in their schooL It was alleged that, in the course of doing that work he received school fees from some of the parents of the students for th~ ' purposes of handing them to their school's accountant but he didn't hand over all the money to the school accountant. Tha~ caused him to be charged in the trial court with the above stated ; offences. After the trial court heard the evidence from both sides it found the appellant guilty and sentenced him to serve seven years imprisonment in each count and ordered the sentences to run concurrently. The appellant was aggrieved by both conviction and sentence and through the service of advocate Alexander Kyaruz, ' he filed in this court an amended Petition of Appeal containing the following grounds of appeal: 1. That the honourable Magistrate erred in law and fact in convicting and sentencing the appellant on the basis of admission when actually the plea or admission was equivoca~ and even the statement made at the police was not pure and clear confession to the offence.

2. That the honourable Magistrate erred in law and fact i~ convicting the appellant when actually the republic did not ' prove its case beyond reasonable doubt as there was uncertainty in the prosecution evidence.

3. That the honourable Magistrate failed to understand that the appellant had no intention to steal the school fees he ha~ collected as he had handed over to the school accountant all ' ' the cash he had in hands and promised to pay the balance. : At the hearing of the appeal the appellant was represented by Mr. Alexander Kyaruzi, learned advocate and the respondent I ' (Republic) was represented by Miss. Agnes Mtaki, learned Stat~ Attorney. The appellant's learned counsel argued the first and second grounds of appeal and prayed to abandon the third ground of appeal after finding it has already been covered by th~ second ground of appeal. Principally the learned counsel for the appellant told the court in relation to the first ground of appeal that, the appellant ' was found guilty by the trial court after pleading guilty to the offences when he was being cross examined in his defence by the Public Prosecutor as he said he know he was being accused to have obtained money by false pretence and said he was pleadin9, guilty but he prayed the matter to be settled out of the court. The appellant's learned counsel submitted that, in order fo~ an accused person to be convicted on his own plea of guilty th~ plea must be un-equivocal in the sense that it must be clearlY; stated by the accused person that is admitting each and every fact constituting the offence. To support his

submission he referred the court to the case of Munisi Marko Nkya V. R.: ' [1989] TLR 59 where the above position was stated. He argued further that, when the appellant said he was pleading guilty to the charge he added some other words which qualified his plea as he said he was ready to pay the money but he was given very short period of time to pay it. The learned counsel for the appellant submitted that, the trial court magistrate was required by section 228 of the Criminal Procedure I Act, Cap 20, R.E 2002 (herein after referred as the CPA) to ask some question to the appellant to be satisfied he was admitting the offences he was facing. He said the facts constituting the offences the appellant was facing were not read to him and ascertained if he was pleading guilty to the offences of obtaining 4 ' money by false pretence only or together with the offence of stealing by servant. He argued in relation to the second ground of appeal that, the amount of money alleged to have been stolen were not ascertained as though it was stated in the memorandum of ' appeal he received twenty two million shillings but Mkwelu Maswali (PW24) who recorded the statement of the complainant ' said the appellant stole twenty one million shillings and PWl who is the school accountant said the money stolen by the appellant is Tshs. 22,370,000/=. He added that when Nurdin Mohamed (PW24) was

reporting the event at police station he said th~ money stolen by the appellant is twenty six million shillings and during the Preliminary Hearing it was said the money collected by the appellant is Tshs. 18,950,000/=. He stated further that, though the appellant said he had paid ten million shillings to the school accountant out of the money he had received but the school accountant (PWl) said he received only Tshs. 9,770,000/= and not ten million shillings. He said th~ school accountant did not say what he did with the said money and when the charge was framed all the money were included in the charge. He argued that, the appellant has never denied to 5 have collected the school fees from the students and maintained that, the appellant had no intention to defraud or steal the money but he was collecting them for the purposes of depositing them in: the school bank account or to hand over them to the school accountant. Finally he prayed the appellant's appeal to be allowed. In reply the learned State Attorney told the court they are supporting conviction and sentence given to the appellant. He said though the appellant is saying his plea was not clear bu~ section 229 of the CPA requires the court to see if the accused can stand to answer his charge. She said the proceeding of th~ case shows when the charge was read to the appellant he pleaded not guilty to the charge and shows

he understood the charge he was facing that is why he managed to answer it. She referred the court to the case of Oswald Mangula V. R Criminal Appeal No. 153 of 1994 CAT at Mbeya (Unreported) where it was stated what is important is for the charge to disclose the elemen~ of the offence the accused person is facing. She argued that, the charge levelled against the appellant contains all the elements of the offence he was facing therefore his plea was not un-equivocal and he understood the nature of 6 ' the offences he was facing. She argued in relation to the secon~ ground of appeal that, the prosecution managed to prove the charge against the appellant beyond reasonable doubt as i required by law. She said the evidence of PWl which is at pag~ 15 of the proceeding of the trial court shows how the appellan~ was receiving the money from the parents of the students anq promised them he would have handed them to the school accountant but he didn't do so. The learned State Attorney addeq that, when the appellant was required by his employer to pay the money he failed to pay and that shows he had no good intentiori when he received the said money. She said in relation to the second offence that, it was clearly ; established the appellant was the headmaster of the school where the alleged offences were committed and he received the money from the parents of the students who some of

them ' testified in court to have handed the money to him. The evidence to show he received the money were adduced through the bank i statement which showed the amount which had been deposited in the bank account and the amount which had not been ' deposited. She finalized her submission by stating that, th~ prosecution managed to prove the charge against the appellant -j to the standard required by law and said they are supporting th~ conviction and sentence given to the appellant. In his rejoinder the learned counsel for the appellant reiterated what he stated in his submission in chief and argued that, they are not contesting that the charge was read to th~ appellant when he stood before the court for the first time and I pleaded not guilty. He however argued that, the appellan~ pleaded guilty when he was cross examined by prosecutor during his defence and the trial court convicted him on his plea of guilty; which was equivocal as some of the words of his plea were not ascertained. He said it was also not stated if he pleaded guilty td all offences including that of stealing by servant. He said the trial court was not required to convict the appellant on a plea which was vague and added that, th~ appellant's intention was not to steal the money of his employer because as he stated in his defence he used the money he had collected in his business on understanding that after

getting profit he would have return the money to the school accountant. After considering the submission made to this court by both sides and after going through the proceeding and judgment of i the trial court the court has found before going to the merit ofr 8 the appeal filed in this court by the appellant and argued by both ' ' sides in this court there are some irregularities in the judgment of ' the trial court which though were not address by the parties in the submission they made to this court but they are making the judgment which the appellant is appealing against its conviction and sentence to be defective. The irregularities found by the court in the judgment of the trial court are to the effect that, the same is not written in i accordance with the requirements of sections 235 (1) and 312 (1) of the CPA. Starting with section 312 (1), the same requires among other things a judgment of the court to contain point or: points for determination, decision thereon and the reasons for the ' decision. It is not featuring anywhere in the judgment the appellant is challenging its conviction and sentence in this cour~ ' where the learned trial Resident Magistrate raised point or points ! required to be determined in the case and evaluated the evidence adduced in the court to determine the said point or points and, the reasons for his decision. What is featuring in the

judgment is that, after the learned ' trial Resident Magistrate summarized the evidence adduced in the court by both sides he simply ended up by stating there is no dispute that the appellant committed the offences he was facing.: To use his own words for the purpose of clarity he stated as follows: 11 After passing through the evidence adduced by the prosecution side and the admission by the accused during the defence case, there is no dispute that the accused did commit the offence he is charged with. " To the views of this court the above part of the judgment of the trial court is not enough to establish the requirements of section 312 (1) of the CPA which provides for what should be contained in a judgment of the court were complied with. The court has come to the above views after seeing there is no any evaluation which was done to the evidence adduced to the trial court by the learned trial Resident Magistrate which would hav~ been followed by the reasons for his decision. The above views of this court is supported by the position laid in the case of Jeremiah Shemweta V. R [1985] TLR 228 where it was held i inter alia that:- ''By merely making plain references to the evidence adduced without even showing how the said evidence is acceptable as true or correct, the trial court 0 10 magistrate failed to comply with the requirements of s. 171(1) of the Criminal Procedure Code

[s.312(1) of the Criminal Procedure Act;. 1985] which requires a trial court to single out in the Judgment the points for determination/ evaluate the evidence and make findings of fact thereon." As the judgment of the trial court is not showing what was stated in the above case as provided by section 312 (1) of the CPA then the same cannot be said is a legal judgment which a conviction and sentence made thereof can stand. To show the requirements provided in the above provision of the law must b~ complied with the court stated in the case of George Mwinge V~ R [1989] TLR 10 that, a judgment must contain the points for ' determination, the decision thereon and the reasons for the decision. Coming to section 235 (1) of the CPA the same require$ after hearing the evidence from both sides and the court find th~ accused person is guilty of the offence he must be convicted of the offence before been sentenced by the court. The said provision of the law states as follows: 11 "The court, having heard both the complainant and the accused person and their witnesses and the evidence, shall convict the accused and pass sentence upon or make an order against him according to law or shall acquit him or shall dismiss the charge under section 38 of the Penal Code." (Emphasis added). The judgment of the trial court which is being challenged in thi~ court shows that, after the trial court found

there is no dispute that the appellant committed the offence he was charged with it followed a sub heading titled "conviction" and under the said sub : heading the learned trial Resident Magistrate stated as follows: "Upon the evidence adduced by the prosecution side and the accused admission to the offence, accused person is hereby found guilty of obtaining money by false pretence c/s 302 of the Penal Code, Cap 16, R.E 2002 and stealing by servant c/s 271 of the Penal Code, Cap 16 R.E 2002." Although the above paragraph was titled "conviction" but td the views of this court it cannot be said the appellant was convicted to the offences he was charged of as there is nowhere 12 I ! in the said paragraph or anywhere else the learned trial Resident ' Magistrate indicated to have entered conviction to the appellant · against the offences he was facing. The requirement to enter conviction after an accused person is found guilty was stated by the Court of Appeal in the case of Khamis Rashid Shaban v.: OPP Zanzibar, Criminal Appeal No. 184 of 2012 (Unreported) ; which was quoted with approval in the case of Zacharia Henry Mahush and Three Others V. R Criminal Appeal No. 204 of 2010 CAT at DSM (Unreported). The court stated in the said cas~ ' that:- "We wish to make it absolutely clear that ... the law strictly requires the trial High Court to specifically enter a conviction after being

satisfied of the guilt of the accused ... short of that both the accused and the prosecution would be greatly prejudiced by the omission to enter a conviction ... " Also in the case of John Charles V. R, Criminal Appeal No.i 190 of 2011 where the Court of Appeal was confronted with ad appeal whereby the appellant was found guilty but he was not convicted, the court addressed the requirements of section 235 (1) and 312 (2) of the CPA and stated as follows:- 1 ''It is clear that both the provisions of the CPA requires that in the case of a conviction/ the conviction must be entered. It is not sufficient to find an accused guilty as charged because the term guilty as charged is not in the statute; and the legislature may have a reason for not using that term; but instead, decided to use the word convict'~ In view of the above cited position of the law the learned trial Resident Magistrate was required to convict the appellan( after finding him guilty of the offences as required by section 23~ (1) and subsequently sentenced him under section 312 (2) of the CPA which specifies a conviction as one of the component of a judgment. Although it might be said that is an inadvertent omission, but it greatly prejudiced the appellant who was sentenced to serve seven years imprisonment without being properly convicted. In the case of Shabani Iddi Jololo and Three Others V. R, Criminal Appeal

No. 200 of 2006 and Mohamed Ally V. R, Criminal Appeal No. 356 'A' of 2014 (Both unreported) the Court ' of Appeal held that, failure to enter a conviction is fatal and incurable irregularity and the court nullified, quashed and set 14! • .• ' aside the judgments of the triaL courts in which no convictions had been entered and remitted the records to the trial courts so that the judgments can be composed in conformity with the requirements of the law. By being led by the above stated position of the law it is the finding of this court that, as the judgment of the trial court is not in conformity with section 312 (1) of the CPA and the conviction ' was not entered against the appellant by the trial court as required by section 235 (1) of the same Act then the judgment of the trial court cannot be left to stand as a proper judgment which can wait to be challenged by way of appeal as it was done by the ' appellant. In the consequences the court has found there is no need of dealing with the grounds of appeal and submission made thereon by the parties' learned counsel as the irregularities found I in the said judgment as pointed herein above are sufficient tq dispose of the appeal before this court. In the upshot the judgment of the trial court is hereby nullified and quashed and the subsequent -sentence of seven: ; years imprisonment imposed against the appellant is set

aside.: The court is directing the record of the trial court to be remitted back to the trial court so that the judgment can be prepared in 0 . 15 , ' conformity with the law. In the meantime the appellant shall remain in custody pending preparation and delivery of the proper judgment which will be made by the trial court. Dated at Dar es Salaam this 16th day of December, 2016 . .::{~~~ =T ~::~·1;'~:-:,~;>::\ ,t) ~f'.,,.··•, r., ....... c-..~ -~.. ·v, "",II .t <= ·.,··. :~ ~?' ~ •1', _(" r.:.--. I.~NI ~·-· ,,'.:- :• \" C•- ;~'# . -· • I ,! ,~ '

JUDGE 16/12/2016 16