roza msigara and another vs the republic 2011 tzhc 2114 15 august 2011

IN THE HIGH COURT OF TANZANIA AT DODOMA (DC) CRIMINAL APPEAL NO. 97 OF 2010 (Originating from Criminal Case No. 77 of 2010 of Kongwa District Court) 1. ROZA MSIGARA 2. JEREMIAH HO SEA............ APPELLANTS VERSUS THE REPUBLIC........................................ RESPONDENT JUDGMENT 27/6/2011 & 15/8/2011. KWARIKO. J: The appellants herein and one JAILOS S/O SIMON the fourtt accused were arraigned before the trial court with the offence of Aiding a school girl to be married contrary to section 4(i) of the Education Act. No. 25 of 1978 and Government Notice Act No. 265 of 2003. Rightly the offence and law ought to have read Aiding a school girl to be married contrary to section 35 (3) of the Education Act Cap. 353 Revised Edition 2002 and Rule 4 (1) of Government Notice No. 265 of 2003. It was alleged by the prosecution that the three had jointly and together on the 29th day of August, 2010 at day time at Msunjile village within Kongwa District in Dodoma Region permitted one SOPHIA D/O HOSEA a Primary School Student to be married by MATHAYO S/O SIMON the act which prevented her from continuing with studies. The said MATHAYO S/O SIMON was charged with the offence of Rape of the said girl SOPHIA D/O HOSEA. When the charge was read over the appellants herein admitted the same, while the 4th accused and the first accused MATHAYO S/O SIMON pleaded not guilty. Facts of the case were given where the appellants admitted them. The Court then convicted them forthwith. They were thus sentenced to three years imprisonment each. On being dissatisfied with the trial court’s decision the appellants brought this appeal where each raised two essential grounds thereof which are almost similar. These are; First; that the trial court grossly erred in law and infact by convicting them on their own pleas of guilty without first warning itself if the appellants knew the meaning of plea of guilty, Second; That the trial Court erred in law and fact by ignoring their defence and denied them to call their defence witnesses and relied on prosecution side only. When the appeal was called for hearing the 1st appellant submitted that she did not permit the girl to be married but her father (1st appellant’s husband) who was not charged and that she was the one who return the girl to school. The 2nd appellant contended that he could not have allowed the girl to be married since he was only her brother. That he did not know what was going on in court as he is ignorant of the court process. 2 Mr Kahangwa learned Senior State Attorney appeared on behalf of the respondent Republic and opposed this appeal. He contended that the grounds of appeal were baseless since the appellants pleaded guilty to the charge and admitted the facts of the case before they were duly convicted and sentenced. That the pleas of guilty were unequivocal ones and the appellants cannot be heard to complain now. Also the issue of the appellants’ defence cannot advise since the appellants pleaded guilty to the charge. The issue to be decided now is whether the appellants’ grounds of appeal have merits. As rightly submitted by Mr. Kahangwa the appellants pleaded guilty to the charge and when the facts were read over to them they admitted the same without any corrections. The facts of the case said that “on 29/8/2010 the 1st appellant and 2nd appellant the mother and brother of Sophia d/o Hosea respectively did permit her to be married by the 1st accused. That the two were aware of the victim’s education and that she was thirteen (13) years old. The police were informed and the accused were arrested. The accused asked for six goats from the 1st accused. That, Sophia d/o Hosea failed to attend school” The 1st appellant’s reply to the facts of the case went thus; “/fs true I aided the victim Sophia to get married to the Accused No. 1 at the payment of six goats which the accused No. 4 paid. The facts are true”. 3 The 2nd appellant replied; “Its true I obtained the six goats in exchange of Sophia from the Accused No. 1 and 4 ” Then the court convicted them forthwith and duly sentenced them. The appellants’ pleas of guilty were an unequivocal ones and the facts of the case proved the offence they stood charged. I do not know any law which obliges a Magistrate or Judge to warn himself/herself before convicting an accused on a plea of guilty as the appellants’ complaint is. What is required is to make sure that the facts of the case so adduced do prove the offence charged before entering conviction. Of this the trial Magistrate did not err. Thus the first ground of appeal is baseless and it is hereby dismissed. As for the 2nd ground of appeal this court agrees with the Republic that since the appellants had pleaded guilty to the charge legally no witnesses were required to either prove or disprove the same. Only facts of the case were needed to see if they proved the charge. In this case the facts of the case proved the offence charged. The appellants admitted them without any corrections. If they had any defence they should not have pleaded guilty to the charge and admitted the facts of the case. This ground is also dismissed. Also, the law bars appeal where an accused has pleaded guilty to the charge as in this present case. Section 360 (1) of the Criminal Procedure Act Cap. 20 Vol. 1 of the Laws Revised Edition 2002 provides thus; “No appeal shall be allowed in the case of any accused person who pleaded guilty and has been convicted on such plea by a subordinate court except as to the extent or legality of the sentence Thus, according to this law the appellants could only have appealed against the sentence but not both conviction and sentence as they did. Therefore, the appellants’ appeal on their conviction is incompetent before this court and it is hereby dismissed. As for sentence the appellants did not say anything during the hearing of the appeal. This applies to the Republic. I have gone through the law under which the appellants were charged i.e Rule 4 (1) of Government Notice No. 265 of 2003 which provides; “Any parent who aids, abates or solicits a School girl to marry while pursuing primary or secondary education shall be guilty of an offence and shall be liable on conviction to a fine of not exceeding one hundred thousand shillings or imprisonment for a term not exceeding two years or both such fine and imprisonment” According to this law, the sentence meted out by the trial court of three years imprisonment was on the higher side and illegal. The sentence also exceeds the sentencing powers for subordinate courts given under 5 section 170 (1) (a), (2) (b) of the Criminal Procedure Act Cap. 20 Revised Edition 2002. If the trial Magistrate found that the circumstances of the case required for a stiffer sentence then he ought to have transmitted the court record to this court for confirmation by a Judge (Section 170 (2) (c) of the Act, ibid). Therefore, since the sentence of three years imprisonment was illegal the same is hereby quashed and set aside; and since the appellants are first offenders who pleaded guilty to the offence, the period they have been in prison shall serve the ends of justice for the offence they committed. Thus, the appeal succeeds in the extent shown herein above. The appellant are ordered to be released from custody forthwith unless otherwise lawfully held. Order accordingly. (M. A. KWARIKO) JUDGE 15/8/2011 Court - Right of Appeal fully explained. (M. A. KWARIKO) JUDGE 15/8/2011 6 AT DODOMA. 15/8/2011 Appellants: All Present. For Respondent: Mr. Wambali State Attorney. C/c: Ms. Komba. (M. A. KWARIKO) JUDGE 15/8/2011 ORDER The original record to be returned to the District Court for continuation of the trial in respect of the first and fourth accused persons.