shafii ally mangoma vs republic 2020 tzhc 530 2 march 2020

IN THE HIGH COURT OF TANZANIA

SONGEA DISTRICT REGISTRY

AT SONGEA CRIMINAL APPEAL NO 2 OF 2020 (Arising from Traffic Case No. 19 o f 2019 o f Namtumbo District Court) SHAFII ALLY MANGOMA............ APPEALANT

VERSUS THE REPUBLIC.............................. RESPONDENT Date o f fast hearing: 24/02/2020 Date o fJudgment: 02/03/2020

JUDGMENT I. ARUFANL J. The appellant, Shafii Ally Mangoma was charged before the District Court of Namtumbo with two traffic offences. He was charged in the first count with the offence of riding a motorcycle on the public road without a valid driving license contrary to sections 19(1) and 113(4) of the Road Traffic Act, Cap 168 (R.E 2002). He was charged in the second count with the offence of causing bodily injury through careless riding of the motorcycle contrary to section 41(1) and 63(2)(b) of the same law. It was stated in the particulars of the offences leveled against the appellant that, on 3rd December, 2019 at about 12:00 hours at Kisutu area within Namtumbo District in Ruvuma Region the appellant rode the i motorcycle with Registration No. MC 673 BSV make Haojue on the public road without a valid driving license. While riding the mentioned motorcycle at the mentioned road he rode it carelessly as a result he knocked one Mundo and caused bodily injury to him. When the offences were read to the appellant he pleaded guilty to both counts. Upon being convicted on his own plea of guilty he was sentenced to pay fine of Tshs. 20,000/= or to serve three (3) months in jail in the first count and he was sentenced to serve six months imprisonment in the second count. The appellant was dissatisfied by the conviction entered against him by the trial court and the sentence imposed to him and appealed to this court basing on the grounds of appeal listed hereunder:- 1. That the trial court erred in law and in fact when it convicted the accused while no any facts which were read over to the accused person and caused him to plea/admit over it; Alternatively the plea/admission of the accused over the purported facts was equivocal.

2. That the trial court erred in law and fact when it convicted and sentenced the accused person for the first count to pay fine or to serve three (3) months in jail and in the second count to serve six (6) months in jail without option of fine while the law allows option of fine.

3. That the trial court erred in law and facts when it convicted and sentenced the accused person with no option to pay fine while the accused is the first offender. When the appeal came for hearing the appellant was represented by Mr. Bernard Mapunda, learned advocate who was assisted by Mr. John Nyoni, learned advocate and the Republic was represented by Mr. Frank Chonja, learned State Attorney. The counsel for the appellant argued the first ground of appeal separately and argued the second and third grounds of appeal together. He argued in relation to the first ground of appeal that, there is no fact which were read before the court and admitted by the appellant as true facts of his case. He said that shows the plea of the appellant was equivocal. He stated that the practice and procedure in criminal cases requires where an accused person has pleaded guilty to an offence the facts of the case be read before the court and recorded in the proceedings of the case. Thereafter the court is required to ask the accused to state if is admitting or disputing the facts read to him and his reply is also required to be recorded in the proceedings of the case. He submitted that, the facts stated to have neeb read in the appellant's case and admitted by him as the true facts of his case were not recorded in the proceedings of his case. He submitted that, although generally an accused

person who has been convicted on his own plea of guilty of an offence is not allowed to appeal against conviction but as held in the case of Laurence Mpinga V. R, [1983] TLR 166 he can appeal against conviction where his plea of guilty is imperfect, ambiguous or unfinished. He said the plea of the appellant in the appeal at hand was imperfect and unfinished as the facts stated were read to the appellant were not recorded in the proceedings of the case. 3 While arguing the second and third grounds of appeal the counsel for the appellant referred the court to the case of Mathias Masaka V. R, Criminal Appeal No. 274 of 2009, CAT at Tabora (unreported) where the Court of Appeal stated that, pleading guilty to an offence an accused person is stand charged of qualifies him for the exercise of mercy from the court. He told the court it was also stated in the above cited case that, the appellate court can alter the sentence given to the appellant by the trial court if was given in a case where the plea of guilty was equivocal. To bolster his argument he also referred the court to the case of Tabu Fikwa V. R, [1988] TLR 48 where Samatta, J (as he then was) stated the principles which are supposed to be considered while imposing punishment to an accused person who has been convicted in any criminal offence. He submitted that, as the appellant has already served more than two months in

jail in the offence which he was not given chance of paying fine it will be injustice to order him to pay fine in respect of the offence is serving its sentence and prayed the court to order for his immediately release from the prison. The learned State Attorney supported the appeal and in supporting submission of the counsel for the appellant in relation to the second and third ground of appeal he referred the court to the case of Salum Shabani V. R, [1985] TLR 71 where it was held that, where a legislature has given option of fine in an offence that option of fine must be exercised first before imprisonment sentence. He joined hand the submission of the counsel for the appellant that, as the appellant has been in prison from 4th December, 2019 it will be injustice to order him to pay fine and prayed the court to release him from the prison. After considering the submission of the counsel for the parties and going through the record of the trial court the court has found as rightly argued by counsel for both sides the appellant was convicted on his own plea of guilty. To the view of this court it is proper to state here that, the provision of the law governing taking of a plea of guilty of an accused person to an offence is section 228 (2) of the Criminal Procedure Act, Cap 20 R.E 2002 which states as follows:- "If the accused person admits the truth o f 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." The procedure to be followed by the court where an accused person has pleaded guilty to an offence laid against him is not provided in the above quoted provision of the law or any other provision of the law but is stated in case laws. One of famous case where the procedures to be followed where an accused person has pleaded guilty to the charge laid against him were laid is the case of Adan V. R. [1973] EA 445 where it was held that:- (0 The charge and all the ingredients o f the offence should be explained to the accused in his language or in a language he understands. (ii) The accused's own words should be recorded and if they are an admission, a plea o fguilty should be recorded; 5 (iii) The prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts. (iv) I f the accused does not agree with the fact or raises any question o f his guilt, his reply must be recorded and change o f plea entered. (v) I f there is no change o f plea, a conviction should be recorded and a statement o f the facts relevant to sentence together with the accused's reply should be

recorded." As held in the above case it is obvious that, after the accused person pleaded guilty to the offence laid against him the next step is that of reading the facts of the case to the accused person and requires him to state if is an agreement with the facts of the case or not. The argument raised by the counsel for the appellant in support of the first ground of the appeal at hand is to the effect that, the facts of the case stated were read to the appellant were not recorded in the proceedings of the case and that renders his plea of guilty to the offences leveled against him to be equivocal. After going through the proceedings of the trial court the court has found as rightly stated by the appellants counsel the facts stated were read to the appellant and admitted them as true and correct facts of his case were not recorded in the proceeding of the case. What is appearing at page two of the proceedings of the trial court is that, after the Public Prosecutor prayed to read the statement of the case which I believe were facts of the case, the trial court recorded that; "Facts read over and fully explained to accused person who stated as follows" The facts stated by the trial court were read and fully explained to the accused person were not recorded anywhere in the proceedings of the case. To the view of this court and as rightly argued by the counsel for both sides the

facts of the case read to the appellant together with his reply to the facts were supposed to be recorded in the proceedings of the case. The above view of this court is getting support from the holding made by the Court of Appeal of Tanzania in the case of Chamrungu V. S.M.Z (1988 LRC (Crim.) 26 at page 29) quoted with approval in the case of Khalid Athuman V. R, Criminal Appeal No. 103 of 2005, CAT at Arusha (unreported) where it was held that, the statement of facts and the accused's reply must, of course, be recorded. The above holding of the Court of Appeal was also followed by this court in the case of Oraph Komba V. R, Criminal Appeal No. 27 of 2018, HC at Songea District Registry (unreported) where the court stated that; "the statement o f the facts were supposed to be recorded in the proceedings o f the case and not only reply made by the appellant." To my view the need for recording the facts of the case read to the accused person along with his reply in the proceedings of a case where accused person has pleaded guilty to the charge is not far fetching as is it help the appeal court to be satisfied if the facts of the case read and admitted by the accused person establish the offence leveled against him. Therefore failure to record the statements of the facts of the case in the proceedings of the case as appearing in the appellant's case is an irregularity

which renders the plea of the appellant to the offences leveled against him to be equivocal. Coming to the second and third grounds of appeal the court has found as rightly argued by the counsel for the parties the record of the trial court shows it is true that the appellant was sentenced to serve six months imprisonment in the second count without being given option of paying fine while the provision of the law upon which the second offence was leveled is providing for option of fine. For clarity purpose section 63(2)(b) of the Road Traffic Act which provides for the sentence to be imposed to a person convicted of an offence of causing bodily injury through careless using of a motor vehicle or trailer contrary to section 41 of the above mentioned law states that:- "63(2) Any person convicted of- (a) N.A (b) an offence under 41, 42 or 44 shall be liable to a fine o f not less than fifteen thousand shillings but not exceeding fifty thousand shillings or to a term o f imprisonment o f not less than two years but not exceeding five years;" The wording of the above provision of the law is very clear that a person who has been convicted of an offence under section 41 of the Road Traffic Act deserves to be sentenced to pay fine or to serve a term of imprisonment. In the case at hand whereby the appellant was charged and convicted of the offence of causing bodily injury through

careless riding of motorcycle contrary to section 41 of the Road Traffic Act was sentenced to serve six months imprisonment without being given option of paying fine as provided in the above quoted provision of the law. To the view of this court and as rightly argued by the counsel for the parties that is not proper. The above view of this court is getting support from the case of Salum Shabani V. R, (supra) where it was held that:- "Where the Legislature has given an option o f a fine or imprisonment, the court, when imposing a sentence, must ascertain that a sentence o f fine should first be imposed and in default o f payment o f such fine, then a sentence o f imprisonment can be given." Since the appellant was not given option of paying fine in the second count while the provision of the law upon which the offence leveled against him is grounded is providing for option of fine the court has found the trial court erred in sentencing the appellant to serve custodial sentence without given him option of paying fine. The court has arrived to the above finding after seeing that, as the appellant had pleaded guilty to the offence and he was a first offender he deserved the mercy of the court which would have entitled him to be given option of paying fine before being sentenced to serve custodial sentence. The court has also arrived to the above finding after seeing it was held in

the cases of Tabu Fikwa V. R and Mathias Masaka V. R cited by the counsel for the parties that, where the law provides for option of fine in lieu of custodial punishment, the punishment of fine must be imposed first where the circumstances of the case do not compel the sentence of imprisonment to be imposed. This make the court accept the submission 9 by the counsel for the parties that, the trial court erred in sentencing the appellant to serve imprisonment sentence in the second count without giving him option of paying fine as provided under the provision of the law establishing the offence leveled against him. Apart from the above finding the court has also found there is a defect in the charge sheet and irregularity in the conviction entered against the appellant which cannot leave the sentence imposed to him to stand. The defect in the charge sheet is featuring in the provision of the law upon which the second count upon which the sentence of six months imprisonment the appellant is serving in prison was made. The court has found while the said second count shows the appellant is charged to have caused bodily injury through careless riding of a motorcycle on a public road contrary to section 41(1) of the Road Traffic Act but in actual fact there is no such a provision in the cited law. The provision which is in the cited law is section 41 which has no any subsection. This

shows the appellant was charged and pleaded guilty to an offence made under a provision of the law which is not in existence. The effect of the said defect is to render the plea of the appellant to the said count to be equivocal. The above finding of this court is getting support from the holding made by this court in the case of R. V. Karim Taibafe [1985] TLR 196 where the accused pleaded guilty to a charge which had cited wrong as well as non-existent provisions of the law. The court held in that case as follows:- "The charge was so fundamentally defective that the accused could as well have been admitting different offences in the 10 same count and his plea cannot be taken to have been unequivocal." It is in the light of the position of the law stated in the above cited case the court has arrived to the settled view that, as the appellant was charged under non-existent provision of the law it cannot be said he was fairly convicted on his own plea of guilty in the second count. As for the conviction entered against the appellant by the trial court the court has found that, while the appellant was charged for causing bodily injury through careless riding of a motorcycle contrary to section 41(1) of the Road Traffic Act but as appearing at page two of the proceedings of the trial court he was found guilty under section 4(1) and 63(2)(b) of the mentioned law and convicted under

section 228(2) of the Criminal Procedure Act, Cap 20 R.E 2002. This shows the appellant was not convicted in line with the requirements of section 312(2) of the Criminal Procedure Act which states that:- 7/7 the case o f conviction the judgment shall specify the offence o f which, and the section o f the Penal Code or other law under which, the accused person is convicted and the punishment to which he is sentenced." To the view of this court the above provision of the law shows the appellant was not convicted under the provision of the law upon which he was charged but he was found guilty and convicted on the provisions of the law which are different from the provisions of the law upon which his charge was laid. The court has arrived to the above finding after seeing the li appellant was found guilty contrary to section 4(1) of the Road Traffic Act while he was charged under section 41(1) of the cited law and convicted under section 228(2) of the Criminal Procedure Act which is not creating the offence laid against him. To the view of this court section 228(2) of the Criminal Procedure Act is only providing for the procedure to be followed where an accused person has pleaded guilty to the offence is facing and is not a provision of the law upon which a person who has pleaded guilty can be convicted. Therefore the conviction of the appellant was not properly entered. As the

appellant was not properly convicted even the sentence imposed to him was not proper as a proper sentence is required to stem from the proper conviction. This was stated so by the Court of Appeal of Tanzania in the case of Joseph Mahona V. R, Criminal Appeal No. 541 of 2015, CAT at Tabora (unreported) where it was stated that, any lawful sentence must be preceded by a proper conviction In the strength of the afore stated reasons the court is joining hand with the counsel for the parties that, the plea of the appellant in both counts was not unequivocal hence his conviction on his plea of guilty and the sentences imposed to him in both counts cannot be left unaltered. Consequently, the appeal is hereby allowed, the conviction entered against the appellant by the trial court on his own plea of guilty in both counts is hereby quashed and the sentences imposed to him are set aside. The court is ordering the appellant to be released immediately from the prison if there is no other lawful cause to continue incarcerating him in the prison. It is so ordered. 12 Dated at Songea this 2nd day of March, 2020 I. ARUFANI

JUDGE 02/03/2020 Judgement delivered today 2nd day of March, 2020 in the absence of the appellant but in the presence of Mr. Nestory Nyoni, advocate for the appellant and Miss Hellen Chuma, learned State Attorney for the Republic. Right of Appeal is full explained to the counsel for the parties. I. ARUFANI

JUDGE 02/03/2020 13