republic vs charles justine and 6 others 2019 tzhc 2156 22 august 2019

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT KIGOMA (Kigoma District Registry) CRIMINAL REVISION NO. 1 OF 2019 (From Original Criminal Case No. 61 of 2018 of the Resident Magistrate Court Kigoma before Eiia Baha RM) THE REPUBLIC........................................................... APPLICANT VERSUS CHARLES JUSTINE AND 6 OTHERS............................. RESPONDENT RULING 07/06/2019 & 22/08/2019 I.C. MUGETA, J. This revision "suo mo to" followed a complaint by the respondents that the trial court sentenced them without an option of fine. I ordered opening of these proceedings to consider the propriety of the sentence. For convenience, the Republic who was the prosecutor at the trial shall be referred to as the applicant and the respondents who are seven (7) in total as respondents. The applicant was supplied with copies of the trial court proceedings for preparation with the hearing. Shaban Juma Masanja, learned State Attorney, appeared for the applicant but the respondents, who are prisoners, were absent with notice. On reflection, and having considered the nature of the issue involved being a pure point of law, and the respondents being lay persons, I decided to proceed in their absence. The learned State Attorney submitted that the punishment for the offence by which the respondents were convicted provides for an option for payment of fine. Therefore the learned State Attorney contended, it was an error on part of the trial court to deny the respondents that option. The respondents stood charged for unlawful presence in Tanzania contrary to section 45 (1) and (2) of the Immigration Act [Cap. 54 R.E. 2016]. The respondents are Burundians who on 23/8/2016 were found at Mkongoro area, Kigoma District without lawful permits authorizing them to be in Tanzania. The respondents are also charged each on a separate count of unlawful entering into Tanzania contrary to section 45 (1) (i) and (2) of the Immigration Act. Subsection 2 of section 45 of the Immigration Act reads:- "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 less than five hundred thousand shilling or to imprisonment for a term not exceeding three years or to both such fine and imprisonment" In Salumu Shaban Vs. Republaic [1985] TLR 71 this court speaking through Mtega, J. held:- "Where the legislature has given an option for a fine or imprisonment, the court, when imposing a sentence, must ascertain that a sentence of fine should first be imposed and indefault of payment of such fine then a sentence of imprisonment can be given." On account of this principle, I agree with the learned State Attorney that the sentence against the respondents is illegal for not giving an option of fine first. Indeed, in fit cases, a court can withhold the option where reasons must be given. In this case no reasons were given as to why the respondents should not be offered the option to pay fine first and imprisonment to follow on default. In his submission the learned State Attorney did not confine himself to the issue of sentence as raised by the court. He identified other irregularities and submitted that the respondents were convicted of their own plea of guilty which he finds to be equivocal. The learned State Attorney put to the attention of the court the fact that all respondent pleaded to the charge by saying "it is true!' which is not sufficient to support a plea of guilty. The learned State Attorney referred to the case of Japhet James Vs. Republic, Criminal Appeal No. 316/2010, Court of Appeal, at Arusha (unreported) where it was held:- "... the expression, "it is true" used by the appellant after the charge was read to him, was insufficient for the trial court to have been unambiguously informed of the appellant's clear admission of the truth of its contents" In our case, the ingredients of the offences charged are firstly, entering into Tanzania and secondly presence without a lawful permit. In the case of Josephat James (suppra), it was further held that it is trite law that a pleas of guilty involves an admission by an accused person of all of the necessary legal ingredients of the offence charged. I am of the view that the phrase "it is true" used by the respondents does not cover the stated ingredients of the offence charged. In my considered opinion a plea of guilty can be said to be unequivocal if after the commonly used phrase "it is true" the accused is made to mention the ingredients of the offence which he admits to be true. Short of that, that plea is legally equivocal. This illegality sometimes can be cured by the admission of facts as narrated by the prosecutor. In the instant case, when facts were ready to the respondents they all responded that "I admit the facts are correct". What are the facts which they all found to be correct? According to the typed proceedings at page 10 one of the listed fact is that all the respondents entered into Tanzania via Manyovu border. However under count five in the charge sheet, says the 4th accused person entered the country via Kibirizi. One of the two statement must be false. This admission of a false statement implies that the respondents did not appreciate the nature of the charge and pleaded guilty because of a mistake or misapprehension of the facts put to them. This vitiates their plea of guilty. The learned counsel also complained about the way the learned trial magistrate handled the case. He is of the view that it was not proper for the trial court to conduct a preliminary hearing insteady of causing the prosecutor to read facts of the case, after the plea of guilty was entered, which could prove the ingredients of the offence. This is what the record shows after the plea was recorded "PP: Investigation is complete" Order:- (1) Preliminary on 13/9/2018 (2) AFRIC Sgd: E. Baha 30/5/2018 This preliminary hearing was not conducted till on 1/10/2018. All along when the case was being adjourned, no reason was assigned for the adjourned despite the fact that the prosecutor all the time reported investigation or facts of the case to be ready. Two issues are wanting in this respect. Firstly, when the accused person pleads guilty under section 228 (2) of the CPA, the court must convict him and pass sentence unless there appear to be a sufficient cause to the contrary. In this case, the cause for the whole month delay before sentence was entered is unexplained. Secondly, Ph which is an acronym for preliminary hearing is a procedure for a trial process where accused person pleads not guilty under section 192 of the CPA. It was, therefore, legally not right to adjourn the case for preliminary hearing where a plea of guilty was entered. The procedure to be followed when a plea of guilty is entered was summarized in the holding in the case of Adam V. Republic [1973] EA 445 which was also cited in Josephat James (supra) thus:- (i) the charge and all the essential ingredients of 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 of guilty should be recorded. (Hi) 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) if the accused does not agree the facts or raises any question of his guilty his reply must be recorded and charge of the plea entered. (v) if there is no change of plea a conviction should be recorded and a statement of the facts relevant to the sentence together with the accused's reply should be recorded. It follows, therefore, that once the accused pleads guilty conviction must be entered, facts of the case should be read immediately, and sentence passed. If adjournment is preferred, reasons for the adjournment must be recorded. The preliminary hearing procedure does not apply under the circumstances. I have held that the sentence was improper and I have also made a finding that the plea of guilty entered by all accused persons was equivocal. What to do under the circumstances? The learned State Attorney submitted that an order for retrial is not proper under the circumstances because, the respondents have been serving a jail term since October, 2018. He suggest/proposed that orders for repatriating, the respondents to their country of origin is proper and just. I tend to agree. However, before I do that I accordingly quash their conviction and set aside the sentence for illegality. The respondents are hereby set free unless otherwise lawfully held. The Immigration Department to arrange for the respondent's deportation to their country of origin. While waiting deportation, the respondent shall remain under custody. The waiting period for deportation shall not exceed three months. It is ordered. I.C. Mugeta, Judge, 22/08/2019 Ruling delivered in chambers on this 22nd day of August, 2019 in the presence of the Applicant and all Respondents. I certify this is a true copy of the original. H.S. Mushi, Deputy Registrar, High Court of Tanzania KIGOMA 8