sabugo philipo vs republic 2017 tzhc 2132 3 august 2017

IN THE HIGH COURT OF TANZANIA

AT DODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 49 OF 2015 (Original Criminal Case No. 31 of 2017 of the District Court of Mpwapwa at Mpwapwa)) SABUGO PHILIPO....................................................... APPELLANT

VERSUS REPUBLIC................................................................RESPONDENT

JUDGMENT 21/6 & 3/8/2017 KWARIKO, J. Before the District Court of Mpwapwa the appellant herein stood charged with the offence of Stealing by agent contrary to section 273 (b) (c) of the Penal Code [CAP 16 R.E. 2002 where it was alleged that the appellant did on 18th day of January, 2017 at about 06: 30 hours at Mpwapwa within Mpwapwa District in Dodoma Region steal Tshs. 993,000/= property of MALIKI s/o SAID. When the charge was read over to the appellant he is recorded to have pleaded guilty. Thereafter the Prosecutor said the facts were ready. The following is what transpired thereafter; " P.P: Facts are ready PRELIMINARY HEARING CONDUCTED C/S 192 CAP 20 RE 2002 The memorandum of facts revels over to the accused person in Swahili language Signed: P.F. Mayumba, RM 24/1/2017

MEMO OF ADMITTED FACTS 1. That the accused name is SABUGO PHILIPO GAILANGA, resident of Mpwapwa, (31) Mhehe a Christian.

2. That the accused person is charged with the offence of stealing by Agent contrary to section 273 (b) (d) of the Penai Code Cap 16 RE 2002.

3. That the accused person commits the said offence on 18/1/2017 at about 6:30 am.

4. That on the material date the accused person steal the amount of Tshs. 993,000/= after being entrusted by the victim one MALIKISAIDI.

5. That the accused person steals the said amount through phone No. 0655642577 that the said phone number is belongs to the accused person. That the accused person was thereafter arrested and taken to police station Mpwapwa for interrogation. That the accused person was interrogated by police officer No. F 7070 D/C Rogath and the accused person admits to commit the offence charged. That the accused person sign upon the caution statement. P.P: I pray to tender the caution statement as part of the prosecution evidence. Accused: No objection. Court: The exhibits called caution statement is admitted as part of prosecution evidence and marked as PI. Signed : P.F. Mayumba, RM 24/1/2017 That the accused person was there after brought in court to face the charge. Court: the accused person is asked if the prosecution facts is correct. Accused: The prosecution facts are correct Court: The accused person is found guilty for the offence charged and I convict him accordingly. Signed: P.F. Mayumba, RM 24/1/2017 P.P.: We have no previous conviction for the accused person, I pray a severe conviction for the accused person in order the same to be a ieason to the accused person. Signed: P.F. Mayumba, RM 24/1/2017

MITIGATION I have two children and my wife depends on me. That is all. Signed: P.F. Mayumba, RM 24/1/2017

SENTENCE I order the accused person to serve 10 years imprisonment without a fine. This sentence is posed to the accused person in order the some to be a leason to the accused person himself and to the societies at large order Accordingly. Signed: P.F. Mayumba, RM 24/1/2017 Following the conviction and sentence the appellant filed this appeal upon five grounds of appeal raising the following two important grounds of complaints: 1. That, the appellant's plea of guilty was equivocal.

2. That, the trial magistrate contravened sections 235 (1) and 312 (2) of the Criminal Procedure Act [CAP 20 R.E. 2002]. During hearing of the appeal the appellant only adopted his grounds of appeal and left to the State Attorney to respond. Whereas on her part Ms. Magili learned State Attorney for the respondent Republic opposed this appeal for the following reasons: that, the appellant admitted the charge and the facts of the case that were given thereafter together with the cautioned statement that was admitted unopposed by him and thus he was convicted upon being found guilty of the offence. Secondly, it was the learned State Attorney's contention that the trial court did not contravene section 312 (2) of the Criminal Procedure Act [CAP 20 R.E. 2002] hereinafter to be called the Act. However, the State Attorney was of the view that the sentence against the appellant contravened the law under section 170 (1) (a) (2) (c) of the Act and left to the court to decide. The appellant did not have any useful submission in rejoinder. Following, the opposing submissions from the parties the parties this court is required to decide whether the appeal has merit. Starting with the first ground of appeal it is ageneral rule as provided under section 360 (1) of the Act that appeal is not allowed against conviction obtained on a plea of guilty except as toextent or legality of the sentence.

The law says thus; No appeal shall be allowed in the case of any accused person who has pleaded guilty and has been convicted on such plea by a subordinate court except as to the extent or legality of the sentence. However, there are exceptions upon which appeal against conviction obtained on a plea of guilty can be entertained. In the case of LAURENCE MPINGA V R [1983] T.L.R 166 Samatta, J (as he then was) said thus; .. an accused person who has been convicted by any court of an offence "on his own plea of guilty” may appeal against the conviction to a higher court on any of the following grounds: 1. that\ even taking into consideration the admitted facts, his plea was imperfect\ ambiguous or unfinished ana\ for that reason, the lower court erred in law in treating it as a piea of guilty; 2. that he pleaded guilty as a result of 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. The question that follows here is whether the appellant's plea of guilty was unequivocal. It is considered view of this court that the procedure adopted by the trial court following purported plea of guilty is unknown in law. The law under section 228 of the Act says thus; (1) The substance of the charge shall be stated to the accused person by the court,

and he shall be asked whether he admits or denies the truth of the charge. (2) If the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words he uses and the magistrate shall convict him and pass sentence upon or make an order against him, unless there appears to be sufficient cause to the contrary. (3) If the accused person does not admit the truth of the charge, the court shall proceed to hear the case as hereinafter provided. Therefore, when the appellant entered a plea of guilty what the trial court ought to do is to require the Prosecutor to adduce facts of the case before the appellant was asked whether or not he admitted the same. However, in this case the pupated facts of the case were not revealed but the record shows that the court conducted preliminary hearing followed by the so called "memo of agreed facts" something which available where accused denies the charge as provided under section 192 (1) Notwithstanding the provisions of section 229\ if an accused person pleads not guilty the court shall as soon as is convenient, hold a preliminary hearing in open court in the presence of the accused or his advocate (if he is represented by an advocate) and the public prosecutor to consider such matters as are not in dispute between the parties and which will promote a fair and expeditious trial. (2) In ascertaining

such matters that are not in dispute the court shall explain to an accused who is not represented by an advocate about the nature and purpose of the preliminary hearing and may put questions to the parties as it thinks fit; and the answers to the questions may be given without oath or affirmation. (3) At the conclusion of a preliminary hearing held under this section, the court shall prepare a memorandum of the matters agreed and the memorandum shall be read over and explained to the accused in a language that he understands, signed by the accused and his advocate (if any) and by the public prosecutor, and then filed. (4) Any fact or document admitted or agreed (whether such fact or document is mentioned in the summary of evidence or not) in a memorandum filed under this section shall be deemed to have been duly proved; save that if, during the course of the trial, the court is of the opinion that the interests ofjustice so demand, the court may direct that any fact or document admitted or agreed in a memorandum filed under this section be formally proved. Therefore, in the spirit of the cited law what was done at the trial was preliminary hearing and not procedure legally recognized where accused enters a plea of guilty to the charge. It is clear that the appellant's plea was imperfect, ambiguous and incomplete as it was held in the case of LAURENCE MPINGA V R (supra). Thus, a

rightly complained by the appellant his plea of guilty was not unequivocal as required in law. The first ground of appeal succeeds. In view of what has been said in the preceding ground of appeal the second ground of appeal lacks base within which to stand. Having been found that the appellant's plea of guilty was equivocal this court vide its revisional powers under sections 366, 372 and 373 of the Act hereby quashes the trial court's proceedings, conviction and set aside the sentence. What would have followed under normal course of things would have been to order retrial of the case but this court finds that option impracticable for two reasons; one the evidence in record by the prosecution is so scant that to order retrial would amount into helping the prosecution to fill in the gaps. I get support in this stance in the case of KAUNGUZA s/o MACHEMBA V R, Criminal Appeal no. 157B of 2013 Court of Appeal at Tabora (unreported). This for instance they did not tender as one of the evidence a proof that the alleged phone number belonged to the appellant and there was no proof of the phone number that sent money to the appellant. Also the alleged appellant's confession contravened sections 50, 51 and 57 of the Act. Two, the appellant has already been in custody for a long period which would have amounted to the legal sentence had the trial magistrate confined himself within sentencing powers given under section 170 (1) (a) (2) (c) of the Act of imprisonment of not more that twelve months for non­ scheduled offences in respect of non- Senior Resident Magistrate as himself. For the foregoing it is ordered that the appellant be released from custody unless he is continually lawfully held.

JUDGE 03/8/2017 DATED at DODOMA this 03rd day of August, 2017

JUDGE 03/8/2017 Date : 03/8/2017 Coram : Hon. M.A. Kwariko, J. Appellant: Present For Respondent - Ms. Nsana State Attorney c/c: R. Nyembe Ms. Nsana State Attorney The matter is for judgment. Appellant: I am ready for judgment. Court: Judgment delivered in court today in the presence of the Appellant and Ms. Nsana learned State Attorney for the Respondent Republic. Mr. Nyembe Court Clerk present.

JUDGE 03/8/2017 Court: Right of Appeal Explained.

JUDGE 03/8/2017