Masanja s/o Misalaba vs Republic (Criminal Appeal No. 363 of 2016) [2019] TZCA 474 (11 December 2019)

IN THE COURT OF APPEAL OF TANZANIA ATTABORA CRIMINAL APPEAL NO. 363 OF 2016 (CORAM: LILA, l.A., WAMBALI, l.A., SEHEL, l.A.) MASANJA 5/ 0 MISALABA APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from decision of the High Court of Tanzania at Shinyanga) {Kibella, l.} dated the 26 th day of luly, 2016 in DC Criminal Appeal No. 60 of 2016 JUDGMENT OF THE COURT 29th Nov" & 11th December, 2019 SEHEL, J.A This appeal arises from the decision of the High Court (Kibella, J.) affirming the decision of the District Court of Kahama at Kahama (Mariki, SRM) (the trial court) which convicted and sentenced the appellant on his own plea of guilty. On the zs" day of June, 2013 the appellant, Masanja Misalaba together with two others who are not subject of this appeal were arraigned 1

before the District Court of Kahama at Kahama. They were charged with three counts; the first count was armed robbery contrary to section 287 A of the Penal Code, Cap. 16 of the Revised Editions 2002 (the PC); the second count was unlawful possession of firearm contrary to sections 4 and 18 of the Arms and Ammunition Act No.1 of 1990 (the Act); and the third count was unlawful possession of Ammunition contrary to sections 4 (1) and 34 (2) of the Act. The charge was read over to them and they all pleaded not quiltv. The case then stood adjourned on several occasions but on the zo" day of September, 2013 when the case was called again and at that time two more accused person were added, the appellant who was the first accused persons pleaded guilty to all three counts whereas the other four co-accused person pleaded not guilty. The trial court entered a plea of guilty and ordered for the appellant to be taken to the Justice of the Peace with justification that it was "for the ends of justice and due to the length of sentence involved." The case was thus adjourned to the 23 rd day of September, 2013. When the proceedings were resumed again on the 23 rd day of September, 2013, the charge was reminded to the appellant where he again pleaded guilty to all counts. The plea of guilty was entered and 2

thereafter, the facts of the case were read over and explained to him. He admitted to all facts. He was accordingly convicted for all the three counts on his own plea of guilty and was sentenced to serve thirty (30) years' imprisonment term for the first count and seven (7) years' imprisonment for the second and third counts, respectively. The sentences were ordered to run concurrently. The appellant was aggrieved. He filed his petition of appeal to the High Court contesting against both the conviction and sentence in respect of armed robbery. He claimed in his petition of appeal that the charge for armed robbery was defective and the sentence of thirty years was too excessive. The High Court declined to entertain the appeal against the conviction as it was convinced that there was unequivocal plea of guilty and pursuant to section 360 (1) of the Criminal Procedure Act, Cap. 20 Revised Editions of 2002 (the CPA) the appellant was not entitled to appeal against the conviction. On the complaint regarding sentence, the High Court found that the sentence of thirty years' imprisonment was statutory thus rightly imposed. However, the sentences of seven years' imprisonment for the second and 3

third counts, respectively were found to be excessive and contrary to section 36 (3) of the Act that proscribes for maximum sentences of three (3) and four (4) years for the second and third counts, respectively. They were thus reduced to 3 and 4 years, respectivley. They were also ordered to run concurrently. Undaunted, the appellant lodged this second appeal against the conviction on the offence of armed robbery and sentence of thirty years' imprisonment. He advanced the following grounds:

1. That the first appellate court erred in law and facts to upheld the appellant's conviction on the charge of armed robbery contrary to section 287A of the PC while his plea of guilty was due to the m isa pprehension;
2. That the first appellate court failed to notice that the appellant's plea was unfairly acquired and it was acquired by the sinister and tactful of the trial magistrate such that prejudiced the appellant; and
3. That the sentence was too excessive. 4

When the appeal was called for hearing before us on the 29 th day of November, 2019 the appellant appeared in person fending for himself whereas Mr. Tito Ambangile Mwakalinga, learned State Attorney represented the respondent Republic. The appellant adopted his grounds of appeal and chose for the learned State Attorney to reply to his grounds of appeal but reserved his right to rejoin, if need would arise. Mr. Mwakalinga began his submission by beseeching upon us not to consider the first and second grounds of appeal because he argued that they were not raised before the first appellate court. When probed by the Court as to whether they are legal issues, he was quick to respond that since they both deal with the issue of the appellant's plea of guilty then it is imperative to assess the procedure adopted by the trial court to ascertain whether the plea was unequivocal or not. He thus considered them to be legal issue which will be argued conjunctively and abandoned his initial prayer. He further intimated to the Court that he will limit his submission on the offence of armed robbery which the appellant is appealing against 5

and he will not address us on the second and third counts of unlawful possessionof firearm and ammunition, respectively. In trying to show that the plea on armed robbery was rightly taken, Mr. Mwakalinga took us to page 10 of the record of appeal where the appellant's plea was recorded on the zo" day of September, 2013. He argued that on that date when the first count of armed robbery was read over to him, the appellant replied "Ni kweli niliiba bunduki na kumtishia mlalamikaji" translating to mean "it is true I stole the firearm and threatened the complainant". When probed by the Court whether the particulars of the offence as appears in the charge sheet were sufficient enough to inform the appellant on the nature of the offence of armed robbery as charged, Mr. Mwakalinga replied that although the charge sheet does not show the weapon used but the facts read over to him informed the appellant the weapon used, that is, "a machete" as such, to his view, the defect is curable under section 338 of the CPA as held in the case of Joseph Maganga Mlezi and Another v. The Republic, Criminal Appeal Nos. 536 and 537 of 2015 and Jamal Ally @ Salum v. The Republic, Criminal Appeal No. 52 of 2017 (both 6

unreported). He contended that with such disclosure in the facts then the appellant had been reasonably informed on the nature of the offence and no prejudice was occasioned to him. He also added that the allegation contained in the charge sheet that the victim was assaulted tallies with the facts that established the victim was injured. He further submitted that after the appellant had pleaded guilty, the trial court proceeded to enter a "Plea of Guilty" and ordered for the appellant to be taken to the Justice of the Peace. Mr. Mwakalinga, in our view correctly observed that the procedure adopted by the trial court was undesirable and it was contrary to the dictates of section 228 (1) and (2) of the CPA but he was of the solid view that it did not prejudice the appellant. Mr. Mwakalinga also faulted the trial court on the procedure adopted in admitting exhibit P2, the cautioned and extra judicial statements of the appellant. He argued that the exhibits after they were cleared for their admission they ought to be read out in court but they were not read out thus prejudiced the appellant. Due to that omission, he prayed for Exhibit P2 to be expunged from the record. 7

As to the third ground of appeal that the sentence was too excessive, Mr. Mwakalinga did not see any merit in it because he argued that the sentence imposed to the appellant was statutory. Before we consider the grounds of appeal, we find it instructive to state from the outset that the appellant's appeal is against the conviction of the offence of armed robbery on his purported plea of guilty that ensued to his sentence of thirty years' imprisonment. He did not appeal against his conviction on the second and third counts of unlawful possession of firearm and ammunition. Section 360 (1) of the CPA bars appeals from convictions based on plea of guilty. It provides:- "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 Ramadhani Haima v. Republic, Criminal Appeal No. 213 of 2009 (unreported) we approved the position stated in the celebrated case of Laurence Mpinga v. Republic (1983) TLR 166 that 8

under certain circumstances an appeal may be entertained notwithstanding a plea of gUilty. The circumstances are:-

1. thet; even taking into consideration the admitted facts, his plea was imperfect, ambiguous or unfinished and, for that reason, the lower court erred in law in treating it as a plea of guilty;
2. that, he pleaded guilty as a result of mistake or misapprehension;
3. thet; 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 convictedof the offence charged. (Emphasis supplied.) We shall demonstrate shortly why we have decided to entertain the appellant's appeal. From the grounds of appeal and submission of the learned State Attorney, the crucial issue in this appeal is whether the appellant's plea of guilty was unequivocal to warrant conviction on plea of guilty and sentence of thirty years' imprisonment was excessive? It is argued by the learned State Attorney that the appellant pleaded guilty to the charge thus led to trial court to enter a plea of gUilty. We shall 9

reproduce part of the charge sheet that was read and explained to the appellant on the zo" day of September, 2013. Most specifically, the first count that deals with the offence of armed robbery in order to appreciate the argument advanced by the learned State Attorney. It reads as follows: "1st COUNT STATEMENT OF OFFENCE: Armed Robbery cis 287A of the Penal Code, Cap. 16 R.E 2002. PARTICULARS OF OFFENCE: That MASANJA 5/0 MISALABA; EMMANUEL 5/0 LUKANGUZI; MWITA 5/0 CHACHA @ JOSEPH; JUMA 5/0 MICHAEL @ STEVEN;MASUNGA 5/0 PAULO @ SIMPO; and GUSSI 5/0 CHEMKA are jointly and together charged on 1 d h day of June, 2013 at about 05:00hrs at Igalilimi Area within Kahama District in Shinyanga Region, did steal one short gun make Webbley Ser. No. 60823 the property of one Leonard s/o Kajala @ Sengo and immediately before the time of such stealing did assault the said Subira s/o Samwel in order to obtain the stolen property. " 10

As reflected in the charge sheet, the appellant was charged with an offence of armed robbery contrary to section 287A of the PC which reads as follows: 'f1ny person who steals anything and at or immediately after the time of stealing is armed with any dangerous or offensive weapon or robbery instrument; or is in company of one or more persons, and at or immediately before or immediately after the time of the stealing uses or threatens to use violence to any person, commits an offence termed armed robbery" and on conviction is liable to imprisonmentfor a minimum term of thirty years with or without corporal punishment." [Emphasis supplied} From the wording of section 287A of the PC, for an offence of armed robbery to be proved, the prosecution is required amongst other things to prove the use of a dangerous or offensive weapon or robbery instrument. That requirement is in line with section 132 of the CPA which provides in clear terms that every charge sheet or information must contain statement of the specific offence with which the accused is charged and such 11

particulars that may be necessary for giving reasonable information to the accused person on the nature of the offence charged. The form and content of the charge or information is prescribed under section 135 of the CPA. The requirement that the particulars of offence shall be set out in the charge or information is contained under sub section (a) (iii) of that section where it prescribes in clear terms that the particulars of offence enacted by the law shall be given in an ordinary language. In that, the particulars of offence must provide all essential ingredients establishing the offence (See:- Isidori Patrice v. The Republic, Criminal Appeal No. 224 of 2007 (unreported)). For the offence of armed robbery, the essential ingredients required to be indicated in the particulars are set out under Paragraph 8 of the Second Schedule to the CPA, dangerous weapon used in the commission of the offence of armed robbery is one of them and it must be shown. Back to the appeal before us, the extract of the charge sheet shows that the weapon used to threaten Subira sl» Samwel is not indicated in the particulars of offence. The learned State Attorney acknowledged that omission and argued further that it was in contravention of section 132 of the CPA. He, however, considered that defect as curable under section 388 12

(1) of the CPA as it was done in the cases of Joseph Maganga Mlezi and Another v. The Republic and Jamali Ally @ Salum v. The Republic (supra). Admittedly in the case of Jamali Ally (supra) we found and held that the charge sheet which omitted to cite the proper provision of the law on the offence of rape of a minor and the citation of the non-existent provision of the law in respect of the punishment was curable. In that appeal the appellant was alleged to have raped his niece of 12 years old. The charge was preferred under sections 130 and 131 (1) (e) of the PC. The Court after noting the defect held: "where the particulars of the offence are clear and enabled the appellant to fully understand the nature and seriousness of the offence for which he was being tried f0 0 where the particulars of the offence gave the appellant sufficient notice about the date when offence was committed, the village where the offence was committed, the nature of the offence/ the name of the victim and her age/ and where there is evidence at the trial which is recorded giving detailed account on how the appellant committed the offence charged, thus any 13

irregularities over non-citations and citations of inapplicable provisions in the statement of the offence are curable under section 388 (1) of the Criminal Procedure Ac0. Cap 20 Revised Edition 2002 (the CPA). " We still hold the same position but in that appeal we were faced with the issue of non-citation and citation of inapplicable law in the charging provision. The case which is almost similar to the matter at hand is the case of Joseph Maganga Mlezi (supra) and here we fully agree with the learned State Attorney that we took a similar stance as in the case of Jamali Ally (supra). In that appeal the charge of armed robbery laid against the appellants omitted one of the essential ingredients of the offence of armed robbery. The particulars of offence only indicated the date and place where the offence of robbery was committed, the weapon used, the stolen items and the name of the complainant (PW1). Nonetheless there was evidence of PWl who told the trial court that he was attacked by armed bandits who stole from him his properties and upon raising alarm which was heeded to by PW2 and PW3; the appellants were pursued and arrested. With those particulars in the charge sheet coupled with evidence of PW1, the Court 14

held that the defects in the charge sheet were curable under section 388 (1) of the CPA. It said: "In the premises/ we are satisfied that the particulars of the offence together with evidenceof PW1 enabled the appellants to appreciate the seriousness of the offence facing them as they were aware that the person threatened at the robbery incident was PW1. This eliminated whatever prejudices and as such the omissionto mention the threatened person being remedied by the testimonial of PW1 is thus curable under section 388 (1) of the CPA. rr In this appeal, we still hold the same view but we wish to add further that precedent cases are numerous on the resultant effect of the defective charge sheet. To mention the few these are; Mussa Mwaikunda v The Republic [2006] T.L.R 387; Abdallah Ally v The Republic, Criminal Appeal No. 253 of 2013; Jonathan George Njamas v The Republic, Criminal Appeal No. 421 of 2016; Meshaki 5/0 Malongo v The Republic, Criminal Appeal No. 302 of 2016; Omary Abdallah @ Mbwangwa v The Republic, Criminal Appeal No. 127 of 2017 (All unreported); Jamali Ally and Joseph Maganga Mlezi (supra). But most 15

importantly what come front from the precedents is the consideration of prejudice to the appellant. The Court treats each case with its own peculiar facts and circumstances to ascertain as to whether the defect in the charge occasioned a miscarriage of justice resulting in great prejudice to the accused person. We stated this position in the case of Omary Abdallah @ Mbwangwa v. The Republic (supra). Now in the present appeal, was the appellant's own plea of guilty on the charge sheet that lacked information on the weapon used which resulted into his conviction occasioned a miscarriage of justice that greatly prejudiced him? In order to answer that question we find it apt to let the record speaks as to what transpired before the trial court: "Date: 20/9/2013 Coram: G.E Mariki, SRM PP: Insp. Shukrani Accused: Present Sic: Paschalia Prosecutor: Charge has been reminded to all accused who asked to plead thereto. Plea of accused 16

1 st count: "Ni kweli niliiba bunduki na kumtishia mlalamikaji" Following that plea, the trial court adjourned the hearing of the case and ordered for the appellant to be taken to the justice of the peace so that his confessions can be recorded before the justice of the peace. That appalling procedure was also noted and conceded by Mr. Mwakalinga that it was highly irregular but he maintained his stance that the appellant was not prejudiced because, he said, when the case was called again the charge sheet was read and explained to the appellant who continued to plead guilty. We reproduce the excerpt of the proceedings thus:- ''Date 23/9/2013 Coram G.E Mariki, SRM Insp. Shukrani Present PP Accused 8/c Paschalia Prosecutor - Case for facts reading for t" accused who pleaded gUilty. Court - Charge has been reminded to I" accused who is asked to plead thereto. Plea of 1 st accused 17

1 st count - Ni kweli ;rd count - Ni kweli :I'd count - Ni kweli Court - EPG for i" accused. G.E Mariki, SRM 23/9/2013 FACTS FOR 1 ST ACCUSED Names personal particulars, offence section and law are as per charge sheet. That accused is being charged together with other four accused persons as per charge sheet. That on 10/6/2013 at 05.00 hours accused while coming from night club called club Masai he was in company of colleagues where they invaded a watchman who was watching at CDT area in Kahama township. They stole a short gun named Webbley SIN 60823 from Subira Samwei who was a watchman and the short gun is a property of Leonard Kajala @ Sengo. That before such stealing accused and his colleague used a panga to injure Subira in order to obtain the gun. After the incident accused was assigned to look for a 18

customer of the gun. On 23/6/2013 police were informed of the incident and ASP A. Mayunga led policemen to Nyihogo Makaburini and they arrested accused at Nyihogo area in possession of the gun and one bullet. Accused was taken to police station for interrogation and in his cautioned statement he admitted obtaining the gun after invading Subira Samwei. Accused was charged in court and was also taken to a Justice of Peace. I have in court and would like tender in court a short gun Webbley SN 60823 and one bullet. I would like to tender it in court as exhibit which was arrested with accused person. Accused - Sina pingamizi, hii bunduki na risasi nilikamatwanavyo. Accused sign - sgd. Prosecutor - sgd. Court - One short gun Webbley and one bullet are admitted as exhibit and marked Pl. 19

I so order. G.£. Mariki,SRM 23/9/2013 Prosecutor - I would also like to tender in court accuseds cautioned statement dated 24/6/2013 and extra judicial statement recorded before a justice of peace on 20/9/2013. Accused - I don't have objection for my cautioned and extra judicial statements being tendered as exhibit I have seen them and they were read to me. Court Cautioned statement dated 24/6/2013 and extra judicial statement of MasanjaMisalabaare explainedto t" accused who has no objection to their admissibility. They are hereby admitted and marked exhibit P2. I so order. G.£. Mariki, SRM 23/9/2013 That'sall. 20

Court - Above statements are read and explained to accused person in Swahili language who reply as follows: Accused - I have heard and understood the statements and exhibits I admit both facts as being true and correct. Accused - sgd Prosecutor - sgd G.E Marik~ SRM 23/9/2013 COURT FINDINGS t" accused herein MasanjaMisalabapleaded guilty to both counts as appearing in the charge sheet. He was referred to justice of peace where his extra judicial statement was recorded I have gone through the admitted facts and exhibits tendered. There is no doubt after explainingall the facts and exhibit accusedunderstandswhat he is admitting. Given the above circumstances I hereby find t" accused herein Masanja Misalaba guilty and he is convicted for both three counts on his own plea of guilty to the charge. 21

Its so ordered. G.E Mariki, SRM 23/9/2013" We took pains to reproduce the record in extenso in order to demonstrate the manner the appellant's plea was taken and recorded and subsequently led to his conviction and sentence. Now given that circumstance, can it safely be held that there was unequivocal plea and that the error committed by the trial court was negligible? We do not think so. We shall demonstrate why. First, the plea of the appellant taken on the zo" day of September, 2013 was unfinished. Even though the record of appeal shows that the appellant admitted to have stolen the gun and to have threatened the victim but he did not go a step further to state whether he used a dangerous or offensive weapon, a key ingredient in an offence of armed robbery. We take that the appellant failed to state the weapon he used because he did not understand the charge leveled to him. It is further our view that his failure to understand the charge was exacerbated by the defective charge sheet.

Secondly, apart that we agree with the learned State Attorney that the facts read over to the appellant on the 23 rd day of September, 2013 disclosed the weapon used, that is, a machete was used in stealing the properties from Subira Samwel but the facts themselves are wanting of details. We are alive that facts read over are part and parcel of the evidence and in terms of section 192 of the CPA once admitted they are taken to be proved beyond reasonable doubt by the prosecution side. However, the facts read over to the appellant are in variance with the charge sheet. It was alleged in the charge sheet that the appellant assaulted the victim whereas the facts read over to the appellant introduced a fact that the victim was injured by machete. We wonder what happened exactly. Was the complainant injured or assaulted? The two ordinary English words have different meanings. According to New Oxford Advanced Learner's Dictionary of Current English, ih Edition at page 77 the word "assault' means "the crime of attacking somebody physically" whereas "injure' is defined at page 799 to mean "to harm yourself or somebody else physicall~ especially in an accident'. From their very meaning they cannot by any stretch of imagination be synonymous with each other as Mr. Mwakalinga was trying to suggest. 23

Similarly, the facts are lacking details on the type of injury caused to the victim. And this is our third reason as to why we say the plea of the appellant was equivocal. It was expected at least for the facts to go a bit further to state the type of injury inflicted upon the victim by the appellant or tender a medical chit showing the harm or wound inflicted to the victim. Unfortunately none of these were forthcoming from the prosecution side. Fourthly, as alluded herein, the trial court after taking the appellant's plea adjourned the hearing to another date. As rightly observed by Mr. Mwakalinga it was highly unprocedural. Immediately after taking the plea and after recording the answer given by the appellant, the facts of the case ought to be read out to the accused person. In the case of Aden v. Republic [1973] EA 445 adopted in Eliko Sikujua and Another v. Republic, Criminal Appeal No. 367 of 2015 (unreported) we explained the procedure to be adhered to by the trial courts before and after a plea of guilty was entered that: "When a person is dtsrqed, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then the language which he can speak and understand. The magistrate should then explain to 24

the accused person all the ingredients of the offence charged. If the accused then admits all those essential elements, the magistrate should record what the accused said, as nearly possible in his own words, and then formally enter a plea of guilty. The magistrate should next ask the prosecution to state the facts of the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant fact. If the accuseddoes not agree with the statement of facts or asserts addition facts which, if true, might raise a question as to his guilt the magistrate should record a change of plea to ''not guilty" and proceed to hold a trial. If the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence. The statement of facts and the accused reply must, of course be recorded." (Emphasis is added). (See also Khalid Athuman v. Republic, Criminal Appeal No. 103 of 2005 and Waziri Saidi v. Republic, Criminal Appeal No. 39 of 2012 (both unreported)). 25

In the case at hand as we have said, the trial court instead of inviting the prosecution to state the facts as the appellant had pleaded guilty to the charge adjourned the hearing of the case to another date for the appellant to be taken to the justice of the peace to record his confession. We are perplexed with that procedure. The law requires for the trial court to invite the prosecution to read out facts and not to fish out more evidence from the appellant. We, for one, think the trial court had no legal justification to seek for more evidence. If at all, it was necessary to have more evidence, in our considered view, it would have come from the prosecution side and not the trial court. We strongly, unlike Mr. Mwakalinga, see that procedure greatly prejudiced the appellant as the trial court turned out to be the prosecuting court rather than a court of law. Lastly, as aptly argued and urged by Mr. Mwakalinga, the cautioned and extra judicial statements after they were admitted as exhibits they were not read out to the accused person for him to know and understand their contents. It is now settled law that once a document has been cleared for admission and admitted in evidence, it must be read out in court in order to enable not only the accused person but also, in certain cases, the assessors, know and appreciate the contents and substance of that 26

documentary evidence. Failure to do so occasioned a serious error amounting to miscarriage of justice. See:- Sunni Amman Awenda v The Republic, Criminal Appeal No 393 of 2013; Jumanne Mohamed and 2 Others v The Republic, Criminal Appeal No. 534 of 2015; Manje Yohana and Another v The Republic, Criminal Appeal No. 147 of 2016; and Issa Hassan Uki v The Republic, Criminal Appeal No. 129 of 2017 (All unreported). The cumulative effect of the above irregularities we entertain no doubt in our mind that the trial magistrate wrongly convicted the appellant on the offence of armed robbery basing on the equivocal plea. Having held that the conviction was wrongly made we see no need determining the complaint regarding sentence. In the end, the appeal is allowed. We quash and set aside all the proceedings from the 20 th day of September, 2013 respecting the charge of armed robbery; conviction and sentence imposed by the trial court on the offence of armed robbery. Since the appeal at the High Court emanated from a nullity proceedings, conviction and sentence, we also quash and set aside its proceedings and judgment. We order that the file be remitted to 27

the trial court for a resumption of the trial on the charge of armed robbery, as soon as possible before another magistrate. In the meantime, the appellant shall remain in custody while awaiting for his trial. DATED at TABORA this io" day of December, 2019. S. A. LILA JUSTICE OF APPEAL F. L. K. WAMBALI JUSTICE OF APPEAL B. M. A. SEHEL JUSTICE OF APPEAL The Judgment delivered this n" day of December, 2019 in the presence of appellant in person unrepresented and Mr. Tito Mwakalinga, State Attorney for the for the respondent/Republic, is hereby certified as a true copy of the original. E.G~" DEPUTY REGISTRAR COURT OF APPEAL 28