CRIMINAL APPEAL NO 656 OF 2022 REVOCATUS MUGISHA VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM; MKUYE, J.A.. GALEBA, 3.A.. And MGEYEKWA. J.A.^ CRIMINAL APPEAL NO. 656 OF 2022 REVOCATUS M UGISHA.................................. ..................................... APPELLANT VERSUS THE REPUBLIC..................... ............................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania) at Dar es Salaam) f De Mello, 3.) dated the 18th day of March, 2020 in Criminal Appeal No. 163 of 2019 JUDGMENT OF THE COURT 2nd & 16th July, 2024 MGEYEKWA. 3.A. This is a second appeal. The appellant, Revocatus Mugisha and seven others who are not parties to this appeal were charged at Kisutu Resident Magistrate's Court on a litany of charges to wit; twenty-seven (27) counts. However, the appellant was only charged on count number eighteen (18) in which he was alleged to have aided and abated Bo Song, a Chinese national to engage in an occupation in the United Republic of Tanzania (URT) without i being in possession of a work of permit contrary to section 45 (1), (p) of the Immigration Act, Cap 54 (the IA). Briefly, the background leading to the present appeal can be summarized as follows. It was alleged that the appellant, an employee of the Immigration Department of the United Republic of Tanzania (the URT) acting in conjunction with his fellow employees and others from the Tanzania Investment Centre and the Ministry of Labour orchestrated a criminal syndicate to facilitate the obtaining and issuance of work permits to undeserving Chinese nationals. It was further alleged that the appellant and his partners in the criminal racket made false statements that the alleged Chinese nationals possessed the requisite qualifications for obtaining resident permits from the Immigration Department of the URT which were then presented to the Labour Commissioner for purposes of securing the permits. When the charge was read to the appellant, he pleaded not guilty. Then, the matter was adjourned and the trial court scheduled a date of conducting preliminary hearing. According to the record of the appeal, on 26th July, 2019 when the preliminary hearing was conducted, the appellant was called upon to plea on the charge which was read and explained to him, 2 he pleaded:" I ag ree, I d id a id B o Son g to w o rk in T anzania. " T h e trial court entered a plea of guilty. When the appellant was asked by the trial Resident Magistrate, if he was admitting the facts which substantiated the charges read over to him, he stated '7 do agree with the produced facts they are correct and true." On the strength of the unequivocal plea of guilty by the appellant and admission to the facts of the case read over to him, the Resident Magistrate convicted him as charged and sentenced him to pay a fine of Tshs 500,000/= on the count he was charged with and, in case of default, to imprisonment of two years. Aggrieved, the appellant unsuccessfully appealed to the High Court. Still undaunted, the appellant has come to the Court on a second and final appeal premising his grievance on four (4) grounds which can conveniently be paraphrased as follows; one, the charge to which the appellant was charged and pleaded guilty was defective; two, the charge did not contain the essential elements of the offence to which the appellant pleaded guilty; three, the appellant's plea was equivocal and four, the first appellate court erred in holding that upon substitution of the charge on the economic offence, no fresh sanction of the Director of Public Prosecutions (the DPP) was needed. When the appeal was called on for hearing, Mr. Timon Vitalis, learned counsel represented the appellant while Mr. Job John Mrema learned Senior State Attorney assisted by Ms. Daisy Makakala, learned State Attorney represented the respondent Republic. Before he could start to argue the grounds of appeal, Mr. Vitalis prayed for leave of the Court to abandon the fourth ground of appeal, the prayer which was granted. Starting with the third ground, Mr. Vitalis began by stating that, it is uncertain whether or not the appellant admitted the offence charged. Expounding, he contended that the appellant pleaded guilty and his conviction was based on a defective charge and the facts adduced in support of the plea did not establish the ingredients of the offence which he pleaded guilty. Fortifying his submission, he referred us to our earlier decisions in Amosi Lesilwa v. Republic, Criminal Appeal No. 411 of 2015 [2016] TZCA 958 (14 April 2016 TanzLII), Laurent Mpinga v. Republic [1983] T.L.R 166, Omary Joachim v. Republic, Criminal Appeal No. 536 of 2016 [2019] TZCA 621 (10 December 2019 TanzLII), Robert N. Mbwilo v. Republic, Criminal Appeal No. 154 of 2017 [2019] TZCA 403 (4 November 2019 TanzLII) and Masanja Misalaba v. Republic, Criminal Appeal No. 363 of 2016 [2019] TZCA 474 (11 December 2019 TanzLII). Submitting on the third ground, Mr. Vitalis challenged the decision of the High Court that the appellant's plea was unequivocal. He referred the Court to page 152 of the record of appeal, and argued that, the appellant was convicted on the 18th count of substituted charge dated 26th July, 2019. Expounding, he submitted that, when the charge was read over to the appellant he stated; I agree, I did aid Bo Song to work in Tanzania. It was Mr. Vitalis further argument that the plea was unfinished, imperfect and ambiguous because the words of the appellant did not refer to any crime. The learned counsel argued that in order to constitute a crime, the plea must have ended with the words; aiding a foreign national to work in Tanzania without a valid permit. Elaborating, Mr. Vitalis contended that the appellant being an Immigration Officer what would have been wrong in aiding Bo Song? He stressed that the key words for purpose of constituting a crime were "without a valid permit" as per the provision of section 45 (1) (a) and (p) of the IA and the same were not stated. He submitted that the Court has held many times without number, that a plea of guilty should amount to admission of all essential elements of the offence the accused is pleading to. To bolster 5 his stance, he referred the Court to the cases of Juma Selemani @ Paul v. Republic, Criminal Appeal No. 394 of 2016) [2019] TZCA 482 (6 December 2019 TanzLII) and Peter Toatoa v. Republic, Criminal Appeal No. 95 of 2015 [2016] TZCA 309 (18 April, 2016 TanzLII). Relying on the above-cited authorities, the learned advocate submitted that, in absence of the words "without a valid permit" means the appellant's plea was not an admission of the all the essential elementsof an offence charged. He concluded by stating that the pleamade by the appellant was unclear, ambiguous and unfinished to amount to a plea of guilty. With respect to the second ground, the learned counsel for the appellant contended that whereas the offence in the 18th count, the appellant is charged for aiding Bo Song, the particulars of the offence are quite different. Exemplifying, Mr. Vitalis contended that the central issue was aiding Bo Song but the facts are not related to Bo Song working in Tanzania without a resident permit. The learned counsel blamed the High Court for misapprehended the facts. He referred the Court to page 422 of the record of appeal and submitted that the High Court came with a different story, the story was twisted contrary to the charge. The learned counsel elaborated that the appellant was charged under section 45 (1) (p) of the IA. It was his 6 argument that there was variance between the particulars of the offence and facts given. Mr. Vitalis did not end there, he contended that, the facts do not state to whom the false statement was made and how he aided or abated Bo Song to process work permits of other Chinese as provided for under section 45 (1) (b) of the IA. He stressed that the law is settled that in order to form a basis for a valid conviction, the facts must establish the offence charged. To reinforce his argument, he referred us to the case of Peter Toatoa (supra). On the first ground of appeal which is a complaint on the defectiveness of the charge, Mr. Vitalis contended that in drafting the charge the provision providing for the punishment is erroneously omitted. Expounding, he submitted that in common law offences like murder or rape a charge need not cite a penal provision, however, in non-common law offences citing a penal provision is necessary. To reinforce his submission, he cited the case of Jonas Ngolida v. The Republic, Criminal Appeal No. 351 of 2017) [2018] TZCA 60 (4 July 2018 TanzLII). It was his argument that with the shortfalls mentioned, the only option acquittal of the appellant not retrial since the prosecution has failed to prove the essential elements of the offence. He insisted that retrial cannot suffice as there are no facts on which retrial can suffice. In any case, he added, the 7 appellant would be prejudiced. To bolster his argument, he cited the cases of Mayala Njigailele v. Republic, Criminal Appeal No. 490 of 2015 [2016] TZCA 253 (25 October 2016 TanzLII) [2016] TZCA 253 and Simon Kitalika & Others v. Republic, Criminal Appeal No. 468 of 2016 [2019] TZCA 105 (15 May 2019 TanzLII). Relying on the case of Fetahali Manji v. Republic [1966] EA 343 he submitted that in the present circumstances, the court cannot order retrial. On the strength of the above submission, the learned counsel for the appellant beckoned upon us to quash the conviction and set aside the sentence. In his riposte, at the very outset, Mr. Mrema supported the appellant's conviction and sentence. Submitting on the first ground of appeal, he stated that the charge is not defective. Elaborating his stance, he contended that the charge which was read over to the appellant complied with section 132 of the Criminal Procedure Act (the CPA). Expounding, he argued that after the substitution of the charge, the same was read over to the appellant, and the latter pleaded. The learned Senior State Attorney resisted the proposition advanced by his learned friend that failure to cite a penal provision of the law prejudiced the accused person and that the same is curable under section 388 of the CPA. To reinforce his submission, he cited the case of 8 Jafari Salum @ Kikoti v. Republic, Criminal Appeal No. 370 of 2017) [2020] TZCA 221 (13 May 2020 TanzLII). The learned counsel went on to submit that, the appellant being an employee of the Immigration Department and one of his tools being the IA, he was conversant and understood the charge which was facing him. He referred us to page 152 of the record of appeal and contended that the appellant was represented by an advocate at the trial court, thus, he was properly advised in respect of the charge which was before him. Mr. Mrema continued to submit that the substituted charge clearly revealed that there was conspiracy between Bo Song, the first accused, the appellant and other accused persons. He stressed that the appellant knew what he was pleading to and understood that the offence was charged under section 45 (1) (b) of the IA. Reinforcing his submission, he referred us to the case of Adan v. Republic [1973] EA 445 and insisted that the appellant understood the language, and admitted in his own words and he was given a chance to state if he objected on which he did not dispute. He cited the case of Frank Mlyuka v. Republic, Criminal Appeal No. 404 of 2018 [2020] TZCA 1738 (20 August 2020 TanzLII) and argued that the appellant's plea was clear. 9 Submitting on the second and third grounds, the learned Senior State Attorney contended that the appellant's plea was perfect and complete. To support his argumentation, he referred us to page 160 of the record of appeal and argued that the exhibits were tendered as listed on page 163 (a) and the appellant did not dispute. He argued that the facts are supposed to be read as a whole not in piece meals. He illustrated that reading the facts as a whole it clearly shows that, the appellant unlawfully did process Bo Song's application and conspired with others to commit the said offence. Mr. Mrema continued to submit that no appeal lies against a conviction grounded on a plea of guilty. He referred us to pages 422 and 433 of the record of appeal, and submitted that the facts were read over and it is clear that there was no variance between the facts and offence charged. He continued to submit that in case the Court will find that the charge was defective or there is duplicity in charge, then, the issue for determination is whether there was miscarriage of justice or it was prejudicial to the appellant. It was his argument that the charge sheet and the facts disclosed the offence under section 45 (1) (b) of the IA which show that the appellant aided Bo Song. Fortifying his submission, he referred us to our earlier decision inlssa Juma Idrisa & Another v. Republic, Criminal Appeal No. 10 218 of 2017) [2020] TZCA 206 (5 May 2020 TanzLII). He implored us to dismiss the appeal and uphold the conviction and sentence. Rejoining, the appellant's learned counsel reiterated submitted that, although the appellant was represented, the advocate cannot plea on behalf of his client. Mr. Vitalis further argued that the production of document at page 163 (b) of the record of appeal were not produced to support the facts of the case. He valiantly stressed that nothing was admitted to support the facts to implicate the appellant. He thus, implored us to allow the appeal and quash the first appellate court decision and set aside the sentence and conviction. We have carefully gone through the record of proceedings on the date the appellant was formally arraigned before the Kisutu Resident Magistrate Court and dispassionately considered the contending submissions by the learned counsel to the proper sieve they deserve. We now turn to determine the grounds of appeal in the same manner as presented and argued by both parties. Our starting point, is the first ground, but before we address the issue whether or not the charge is defective, we find it necessary to determine first the confronting issue on which the parties locked horns, whether or not ii the offence o f aiding and abeting are sim ilar. The law relevant in determining this issue is contained in section 45 (1) (p) of the IA. For easy reference, we undertake to reproduce it hereunder. It reads: "45 (1) Any person who - (p) aids o r abets any person in com m itting any o f the foregoing offences" According to the Black's Law Dictionary 8th Edition of 2004, the terms "aid" and "abet" are defined to mean to assist or facilitate the commission of a crime or to promote its accomplishment. This means that aiding and abetting amounts to one and the same thing. Therefore, we are not at one with Mr. Vitalis contentions that the charge was duplex because it lumps two offences in one count and the statement of the offence did not name the offence which the appellant aided or abetted Bo Song. However, we agree that the penalty or sentencing provision was not stated in the charge sheet. Now, the question that came to our mind is whether or not the omission renders the charge defective. It was Mr. Vitalis argument that failure to cite the penal provision in non-common law offences such as offences created under the IA was necessary and therefore such omission rendered the charge defective. With profound respect, we differ with the learned counsel's submission and hold that the effect of the omission in citing 12 a provision of a penalty section is the same, regardless of whether the case was brought under the Penal Code or the IA. In any event the fact is that the appellant was not prejudiced by such omission because he was represented by an advocate at the trial. The cited case of Jonas Ngolida (supra) by Mr. Vita Iis is not appropriate in view of the matter at hand, because non -citation of a penal section does not vitiate the proceedings instead the same is curable under section 388 of the CPA. See the case of Faustine Yusuph v. Republic, Criminal Appeal 455 of 2018 [2022] TZCA 630 (13 October 2022 TanzLII), in which held that sections 132 and 135 of the CPA do not expressly require the citation of penalty provision. The Court further held that: "At any rate, om ission to cite a sentencing provision wouid not render the charge sheet defective. Such defect is curable under section 388 o f the CPA, in lin e with the position in the case o f Jam ali A lly @ Saium i/, R, Crim inal Appeal No. 52 o f 2017 (unreported)." Guided by the above authority, we find this ground devoid of merit. Turning to the second and third grounds, the crucial issue for our determination is whether the appellant's plea of guilty was unequivocal to warrant conviction on a plea of guilty. At the onset, we find that as the law 13 stands presently, it does not permit any appeal on one's own plea of guilty, except as to the extent or legality of the sentence. This is the tenor and import of the provisions of section 360 (1) of the CPA. For ease of reference, we take the liberty to reproduce the subsection as under: "360 (1) No appeal sh all be allow ed In the case o f any accused person who has pleaded gu ilty and has been convicted on such plea by a subordinate court except as to the extent or legality o f the sentence However, we are keenly aware that notwithstanding a conviction resulting from a plea of guilty, under certain circumstances an appeal arising thereof, may be entertained by an appellate court for both conviction and sentence. These would include situations where the plea was imperfect, ambiguous, or unfinished or where the appellant pleaded guilty as a result of a mistake or misapprehension or where the charge levelled against the appellant disclosed no offence known to law, and upon the admitted facts, the appellant could not in law have been convicted of the offence charged. This position has well been elaborated by the Court in a plethora of authorities including in Josephat James (supra) and Frank Mlyuka (supra). The statement of offence and particulars of offence constituting the 18th count for the 7th accused (the appellant) is depicted herein as follows: 18th COUNT: FO R THE 1 st ,3 rd ,4 ™ ,5 th,6 th a n d 7 th ACCU SED . STA TEM ENT O F O FFEN CE AIDING AND ABETING; Contrary to section 45(1)(p) o f the Im m igration A ct (Cap.54 R .E 2016) P A R T IC U LA R S O F O FFEN CE FREDRICK CHARLES KUMALIJA, BHOKE WEREMA MWITA, FATUMA AKIDA SONGORO, KELVIN PONELA, ROBERTM KINIAndREVOCATUS MUGISHA on divers dates between 1st June,2017 and 17th May, 2018 within the City and Region o f Dar es Salaam aided BO SONG, a Chinese National, to engage in an occupation in the United Republic o f Tanzania, w ithout being in possession o f valid residence perm it. What transpired in the trial court on 26th July, 2019 that has culminated to the instant appeal is well indicated on pages 152 through 154 of the record of appeal which we reproduce hereunder: "18th Count: For the 1st, 3rd, 4 h, 9 h, 6th and 7 h accused. C o u rt: Charge read over and explained to the accused person who is asked to piea thereto: A ccu se d p le a d s: "I agree, I d id aid Bo Song to work in Tanzania" C o u rt: plea o f gu ilty entered. 15 A ccu sed : Signed SgdH .A Shaidi, PRM // After having recorded the pleas of the appellant as indicated above, on 30th July, 2019, the prosecution prayed for the court to read over the facts of the case. For ease of reference, we reproduce the relevant facts hereunder: "... That it was further revealed in the investigation m ounted that, J d ,4 h ,5 th ,6 h ,and 7th accused persons, who are the em ployees o f the Im m igration and Labour Departm ent respectively were unlaw fully assisting and processing the applications lodged by B o S o n g a n d 1st a ccu se d perso n . They assisted and processed the said perm its notw ithstanding the glaring shortcom ings and lack o f prerequisite qualifications. Later they a ll received the proceeds generated from the said schem e..." The appellant responded in his own words as follows: 7th A ccu se d : " I do agree with the produced facts they are correct and true." In the view of the facts borne out from the proceedings as shown above, we are at one with Mr. Vitalis that the words by the appellant;"/ agree, I did aid Bo Song to work in Tanzania "a mounted to a plea which was 16 imperfect, ambiguous and unfinished because the same was not an admission of any offence known to the law. For a plea to be perfect, unambiguous and complete, it was crucial that it related to the offence charged. As rightly submitted by Mr. Vitalis one would have expected the appellant to have pleaded as something to the following effect; I agree, I did aid Bo Song to work in Tanzania without being in possession o f valid residence p e rm it" Unlike, the case at hand the appellant's plea was imperfect and unfinished, there was no further elaboration. In John Samwel @ Kabaka and Another v. Republic, Criminal Appeal No. 58 of 2005 (unreported), such imperfectness, ambiguity or misapprehension and unfinished pleas of the accused person were held to be equivocal and could not ground a lawful conviction. We emphasized the same in the case of Safari Deemay v. Republic, Criminal Appeal No. 269 of 2011 (unreported), in quashing and setting aside all the proceedings, conviction and sentence, the Court warned: "... we are a/so o f the settled view that it would be more ideai fo r an appellant who has pleaded gu ilty to say more than ju st, "it is true. A tria l court should ask an accused to elaborate, in his own words as to what he is saying 'Is true”. In addition, even the prepared facts which were read to the appellant which were expected to clear such uncertainties and imperfectness of the recorded plea were improper because they did not disclose the ingredients of the offence and as such. In the circumstances, it was unsafe to state that the appellant understood the nature of the charges and the narrated facts establishing the offence. The charged offence states clear that the appellant was aiding only one person, Bo Song but the facts disclosed that the appellant aided two persons; Bo Song and the first accused contrary to what the charge and particulars of the offence had earlier stated that is, he aided Bo Song in exclusion of any other person. For the aforesaid findings, we are inclined to agree with Mr. Vitalis that reading the facts as a whole, the plea was equivocal. We are alive that the learned Senior State Attorney implored us to find that in case the facts did not disclose the ingredients of the charged offence, the defect is curable under section 388 of the CPA. However, we find and hold that failure to disclose the ingredients of the offence charged is fatal and cannot be cured under section 388 of the CPA because the defect went to the root of the case and the appellant was prejudiced. On the way forward, the learned counsel implored us to find that besides the appellant's plea being equivocal, the prosecution failed to prove 18 the essential elements of the offence and the Court should not order a retrial. We agree that in the circumstance of this case, a retrial will not serve the interest of justice, but it will by all means be prejudicial to the appellant. In the upshot, we allow the appeal, quash the proceedings in relation to the appellant and the conviction entered. We set aside the sentence imposed on the appellant and order that the Tshs. 500,000/= he paid as fine in lieu of imprisonment be refunded to him, iA T E D at DAR m SALAAM this 16th day of July, 2024. R. K. MKUYE JUSTICE OF APPEAL Z. N, GALEBA JUSTICE OF APPEAL A. Z. MGGYEKWA JUSTICE OF APPEAL The Judgment delivered this 16th day of July, 2024 in the presence of Mr. Timon Vitalis, learned counsel for the Appellant and Mr. Mosie Kaima, learned Senior State Attorney for the Respondent, is hereby certified as a true copy of the original, R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 19