seif nasa mbubi seif nasa chacha vs republic 2015 tzhc 2112 13 july 2015

IN THE HIGH COURT OF TANZANIA

DAR ES SALAAM DISTRICT REGISTRY

AT PAR ES SALAAM HC CRIMINAL APPEAL NO. 60 OF 2015 (Appeal from the decision of the Kisutu Dar es Salaam RM's Court, in Criminal Case No. 95 of 2015) SEIF NASA MBUBI @ SEIF NASA CHACHA ........ APPELLANT Versus THE REPUBLIC ...............................RESPONDENT Last order: 10th July, 2015 Date of Judgment: 13th July, 2015

JUDGMENT Feleshi, J.: The appellant was convicted and given consecutive sentence of paying fine of Tshs.50,000/= and Tshs.200,000/= respectively, and concurrent jail sentence of 1V 2 years and two years respectively, upon entering a plea of guilty before the Kisutu Dar es Salaam Regional Court on 28th April, 2015 in respect of two counts namely, Unlawful presence in the United Republic of Tanzania: Contrary to section 31(l)(i) of the Immigration Act, [Cap.54 R.E.2002] and False Statement: Contrary to section 19(2)(a) of the Tanzania Passport and Travelling Document Act, No.20 of 2002. The particulars of the two counts that founded the accused's conviction and sentence read in part: 1st COUNT "Seif Nasa Mbubi @ Seif Nasa Chacha on the 23rd day of April, 2015 at the Office of Immigration Head Quarters in Temeke District within the City and Region of Dar es Salaam being a Citizen of Uganda was found unlawfully present in the United Republic of Tanzania without a valid pass." 2nd COUNT "Seif Nasa Mbubi @ Seif Nasa Chacha on the 23rd day of April, 2015 at the Office of Immigration Head Quarters in Temeke District within the City and Region of Dar es Salaam being a Citizen of Uganda made a false statement for the purpose of obtaining a Tanzania Passport unlawfully." The accused was sent to court on 28th April, 2015 where he entered the plea of guilty to both counts. On that day the

prosecution sought an adjournment so as to be able to prepare the facts which they adduced on following day-29th April, 2015. For the reason that will be pointed later, I prefer to quote the larger part of the trial court's proceedings as follows: "Court: FACTS ADDUCTION A/Insp. Kagoma:- ....He is Ugandan by nationality. He is a fashion designer. On the 21st day of January, 2015 the accused entered the United Republic of Tanzania through Namanga border. He had a holiday visa No. 167867 which was valid until 21/2/2015. I pray to tender the accused's temporal Passport evidencing his day of entry and validity of his temporal visa. Accused: No objection Court: Accused's temporal passport admitted as exhibit PI of prosecution. sgd: Mkeha, SRM 29/4/2015 On the 22nd day of April, 2015 the accused person was arrested at the office of Immigration Head Quarters in Temeke District within the City and Region of Dar es Salaam being a citizen of Uganda when he was there doing an application for Tanzanian Passport knowing that doing so was an offence. On the same day the accused was found possessing filled Passport forms of Tanzania No.09606240. affidavit regarding the birth of Paschalia Rhobi Chacha, affidavit regarding the birth of Nelson Chacha. bond letter. Certificate of academic transcript (forged one) and a forged birth certificate No. 1000045970 all document having been made by the

accused for the purpose of obtaining a Tanzania Passport unlawfully. I pray to tender all the documents collectively as an exhibit. Accused: No objection. Court: forged birth certificate, two affidavit forms (filled one), bond letter, forged academic transcript and filled Passport application form collectively admitted as exhibit P2 of the prosecution. sgd: Mkeha, SRM 29/4/2015 On the same date, time and place, it was discovered that the accused person's presence in this country as on 22/4/2015 was unlawful his Holiday Visa having expired on 21/2/2015 and further, it was discovered that the accused being a citizen of Uganda made a false statement for the purposes of obtaining a Tanzanian Passport unlawfully that being the case he changed his name to be known as SEIF NASA CHACHA not to be recognized as a non citizen of Tanzania. On the 28th April, the accused person pleaded guilty to the two offences he now stands charged with.... Accused: Yes your honour, all the facts are correct. Court: Following an unequivocal plea of guilty of the accused person to the charges, and his insistence that the facts are correct which facts sufficiently prove the two counts with which the accused stands charged, I hereby convict the accused person as charged. sgd: Mkeha, SRM 29/4/2015 ...MITIGATION: Accused: The 8 days I have been in remand have taught me a lesson. I will not repeat. My intention

was to be recognized as a Tanzanian so that I can win awards in fashion designing. I ask for your forgiveness.... sgd: Mkeha, SRM 29/4/2015" [emphasis supplied] On 20th May, 2015 Mr. Mluge Karoli Fabian, Advocate for the appellant filed the Petition of appeal for and on behalf of which reads: "THAT the appellant above named appeal to this Court against sentence of the Honourable trial magistrate given at Kisutu RM Court on the 29th day of April 2015 basing on the following grounds inter alia, namely:- 1. That the learned trial magistrate erred in law and fact in convicting and sentencing the appellant on unequivocal plea of guilty.

2. That the learned trial magistrate erred in law and fact in sentencing the appellant to both fine and imprisonment.

3. That the trial magistrate erred in law in imposing excessive sentence to the appellant. WHEREFORE the appellant prays that the Appeal be allowed and convicted to pay or sentenced to serve imprisonment for 5 years be set aside. Dated at Dar es Salaam this 20 day of May, 2015 ADVOCATE FOR THE APPELLANT" At the hearing on 1st July, 2015 Mr. Mluge dropped the 1st ground of appeal and argued the 2nd and 3rd grounds in support of the appeal. He submitted that the appellant is not aggrieved by the sentence mounted against him by the trial court in respect of the 1st count. He said, his contention is directed to the sentence passed against him in respect of the 2nd count which he said was against the spirit of section 19(2) (a) of the Tanzania Passport and Travelling Document Act (supra) which he submitted that it provides for three alternative sentences: first, fine not less than Tshs.200,000/= and not more than Tshs.l,000,000/=; two, imprisonment for a period not less than two years; and three, both fine and imprisonment. He argued that the appellant, being 20 years of age and a student studying in Uganda, ought to have been sentenced to a fine only. He referred this Court to the decision in the case of Republic V. Asia Salum and Others [1986] TLR 12 (HC) where this Court (Hon. Mnzavas, JK- as he then was) emphasized that first offenders should not, as a rule, be sent to prison

and youthful offenders should not be sentenced to terms of imprisonment. He also cited the decision in the case of Republic V Edward Giriki [1986] TLR 165 (HC) where this Court (Hon. Rubama, J. - as he then was) held that the accused should have been given the opportunity of paying fine. He submitted that this Court be pleased to consider the youthfulness and studentship nature of the appellant and find that the trial court erred to impose a two years imprisonment sentence against him. He further submitted that the fact that the appellant already paid the fine imposed in the sentence shows that he is humble and royal to the government. Mr.Tawale, the learned State Attorney who represented the Republic, the Respondent in this appeal, did not oppose the submission made by Mr.Mluge above. That, though he did not oppose the appeal he reversed and invited the Court to look at the sentence imposed within the confines of the court's discretion. In view of the above, it is apparent to me that the issue I am supposed to determine is whether the accused plea was correctly given and recorded. In the first place, I feel obliged to quickly observe that Mr.Mluge's decision to drop the first ground of appeal in the case at hand was an opportune one. This is because, having pleaded guilty to the offences, his client, if he really gave unequivocal plea, had no right in terms of section 360 (1)

of the Criminal Procedure Act, [Cap.20 R.E.2002] to appeal against the conviction. The said section provides that 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. In the case of Alfani Mlaponi and Another V Republic [1990] TLR 104 (HC) my Brother Hon. Maina, J. (as he then was) fortified this position when he held that there can be no appeal against conviction on a plea of guilty and that where the pleas are clearly unequivocal the conviction is inevitable. In the light of the issue I raised above- whether the accused plea was correctly given and recorded, I will now explain the reason behind the above extensive quotation of the trial court's proceedings. I did so because: first, the appellant's conviction and sentences are solely based on the plea of guilty; and second, the offences in the case concern issues of citizenship/nationality which seems to the court to be very critical. It is due to the second reason above, I can understand why the trial court issued consecutive sentence order in respect of the sentence mourned against the appellant in respect of the second count. It is trite that consecutive sentence is preferably granted only on special circumst-ancos necessitating the convicting court, when considering which amonnst

the prescribed sentences available to it would suit the offender's misconduct/offence, and hence depart from the general rue advocating for issuancp of concurrent sentence orders. To appreciate this position let us find out what the Senior Resident Magistrate stated when sentencing the appellant. He is on record at page 6 of the typed proceedings to have stated: "SENTENCE: In sentencing the accused person I take into account the fact the accused is a first offender as explained by A/Insp. Kagoma, the Public Prosecutor for the Immigration Department. That however, is to be weighed along with the seriousness of the offences with which the accused person has been convicted of especially the 2nd count i.e. making false statement for the purpose of obtaining a Tanzanian Passport unlawfully.../' I have gone through the contents of section 19(2) (a) of the Tanzania Passport and Travelling documents Act (supra). Since it is that provision of law that premised Mr. Mluge's submission above, I take a liberty to reproduce section 19(1) & (2) (a) as hereunder: "19-(1) No person shall obtain a Passport or travelling document in contravention of the provisions of this Act. (2) Any person who- (a) for the purposes of this Act, makes or causes to be made a false statement, or declaration; commits an offence, and is liable, upon conviction to a fine not less than two hundred thousand shillings

and not exceeding one million shillings or to imprisonment for a period not less than two years or to both such fine and imprisonment." In his earlier on submission, Mr.Mluge cited the decision made in the case of Republic V. Asia Salum and Others (supra) and urged this Court to fault the learned trial magistrate for imposing the imprisonment to the appellant who is the first and youthful offender. I would hastily observe here that in the same case this Court stated an exception to that rule can be applied where the offence involved is of such a serious nature that an exemplary punishment is required or where the offence is so widespread that severe punishment is needed as a shock deterrent. Therefore, in my unfeigned opinion, the fact that the learned Senior Resident Magistrate took into account that the accused was the first offender and weighed it along with the seriousness of the offences with which he was convicted of, that is the 2nd count which is about making of false statement for the purpose of obtaining a Tanzanian Passport unlawfully, that trial court, was in law entitled to grant the consecutive sentence against the appellant. However, let us now determine if the learned Senior Resident Magistrate rightly recorded the plea and its consequent conclusion. In the case of D P P v. Paul Reuben Makujaa [1992] TLR 2 (HC) my brother Msumi, J. (as he then was) held that

before accepting a plea of guilty by the accused the court must be satisfied that the accused's reply is nothing but a clear admission of guilt. And this Court held in Buhimila Mapembe V Republic [1988] TLR 174 (HC) (Hon. Chipeta, J.-as he then was) that: (i) In any case in which a conviction is likely to proceed on a plea of guilty, it is most desirable not only that every constituent of the charge should be explained to the accused but that he should be required to admit or deny every element of it unequivocally: (ii)The words "it is true" when used by an accused person may not necessarily amount to a plea of guilty, particularly where the offence is a technical one: (iii) in the present case, the facts given by the public prosecutor cannot be reasonably said to have amounted to full disclosure of the ingredients or elements of the offence, rather they appear to be more of an allegation that the appellant had possession of the lion skin; (iv) where the offence charged is rather technical and the accused is unrepresented, it is desirable that the technical words be adequately explained to the accused before he is asked to plead thereto. In the present case the first count was laid under section 31(1) (i) of the Immigration Act (supra). For purposes of this findings, I reproduce section 31(1) (i) and (2) below: "31. (1) Any person who- (a)- (h) N/A (1) unlawfully enters or is

unlawfully present with Tanzania in contravention of the provisions of this Act; shall be guilty of an offence (2) Any person who commits an offence under this Act shall, except where any other penalty is specifically provided therefore, be liable on conviction to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding three years or to both such fine and imprisonment." In the light of the principles laid in D P P v. Paul Reuben Makujaa and Buhimila Mapembe v. Republic above, I would wish to underline that the things that the trial court must consider before accepting a plea of guilty by the accused include: one, that the charge placed for plea taking is not tainted by irregularities; two, the facts adduced by the prosecution in every material aspect are in harmony with the charge; three, the court must confirm before recording the plea that the accused well understood the substance of the charge and at the end confirm to have well understood the facts adduced in support of the charge. In doing so the court has to ensure that the language and means of communication used facilitate the accused to apprehend the said substance; four, the contents in the exhibits admitted in evidence are wholly made part of the facts adduced and pleaded to; five, the trial court as much as it can must nearly record the proceedings under the terms set out by

section 210 of the Criminal Procedure Act (supra); and six, for interest of justice, and for reasons that must be recorded, the court may subject the case to full trial even where there is an affirmed plea of guilty. Now, in view of the foregoing factors, I dare to hold that the learned Senior Resident Magistrate, as I will shortly briefly show, did not have before him an unequivocal plea of guilty to record. The parts of the particulars of offence, adduced facts and accused allocutus underlined above constitute the contentious substance in the trial court's proceedings. In the light of the two cases and the factors I outlined above, I have gleaned from the court record the following: one, there is variance on the dates indicated in the charge sheet and that adduced in the particulars concerning the date the offence was exactly committed; two, the facts adduced before the trial court to the effect that the accused's Visa expired on 21/2/2015 is not correct because the accused's three months VISA tendered and admitted in Court as Exh.P.l expired on 20th April, 2015; third, the facts adduced before the trial court to the effect that the accused had changed his name to be known as SEIF NASA CHACHA so that he should not be recognized as a non citizen of Tanzania is not correct because that name appears also in his academic transcript tendered by the prosecution which was admitted

as Exh.P2; four, the facts adduced before the trial court to the effect that the accused is a non citizen is still tainted with doubts because in his academic transcript tendered and admitted as Exh.P2 the exhibit shows that the accused's nationality is a Tanzanian; five, the allegedly forged documents collectively admitted as Exh.P.2 were not accompanied with any tendered expert's opinion; and six, the trial court was not given cogent facts to resolve the rival position about the accused's occupation since he is on record being referred to as a student and a fashion designer. Those gaps in the adduced facts could not therefore justify recordation of unequivocal plea of guilty particularly on serious offences touching nationality and forgery when viewed in the light of sections 10(1) and 11 of the Immigration Act (supra), section 19(1) & (2) (a)&(j) of the Tanzania Passport and travel documents Act (supra) and sections 333 and 335 of the Penal Code, [Cap.16 R.E.2002] which, in my respectful opinion, cannot be cheaply compromised by other factors during this age experiencing drastic increase of illegal immigration, terrorism and allied transnational offences. It is important that if the appellant as a matter of right, has genuine grounds entitling him to the grant of a Tanzania nationality, as purported by his academic transcript, the relevant state organs have to work on this

critical matter. From the foregoing analysis, due to the non disclosure of necessary facts by the prosecution before the trial court coupled with the prosecution's failure to resolve contradictions, I respectfully reject the submissions made by Mr.Mluge and Mr.Tawale above and find the proceedings before the trial court being a nullity. I accordingly quash the trial court's proceedings and its consequent conviction. I also set aside the sentences and order a retrial de novo within a possible short time unless the Director of Public Prosecutions decides not to prosecute the appellant. I order accordingly. t DATED at DAR ES SA 13 day of July, 2015. E.M.FELESHI

JUDGE Delivered in the presence of Mr. Mluge, Advocate and tH^Appellant in person as well as Mr. Frank Tawale, the learned State Attorneys, for the Republic, the Respondent. A right of Appeal ex °>