Daud Modestus Mageheka vs Republic (Criminal Appeal No. 536 of 2021) [2024] TZCA 1197 (5 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA CORAM: MWANPAMBO, J.A., KAIRO, 3.A. And ISSA. J.A. CRIMINAL APPEAL NO. 536 OF 2021 DAUD MODESTUS MAGEHEKA ....................................................... APPELLANT VERSUS THE REPUBLIC...........................................................................RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Nqunvale, J.^ dated the 28th September, 2021 in Criminal Appeal No. 9 of 2021 JUDGMENT OF THE COURT 29th November & 5th December, 2024 KAIRO, J.A.: This is a second appeal. The appellant was convicted allegedly, on his own plea of guilty in Criminal Case No. 118 of 2020 in the District Court of Rungwe at Tukuyu for aiding the smuggling of immigrants contrary to section 46 (1) (d) of immigration Act, Cap 54 R.E. 2016 (the Act). It was alleged by the prosecution that, on 15th December, 2020 at about 18.00 hrs at Chang'ombe street within Bulongwe village, Msasani Ward in Rungwe District in Mbeya Region, the appellant, being a citizen of Tanzania, did aid smuggling of the immigrants by guarding a hut where 57

illegal immigrants were hosted. It is noteworthy that, the charge had two counts whereby the first one concerned 57 Ethiopian illegal immigrants while the second count was in respect of the appellant and another person (the 59th accused), not a party in this appeal who was accused of arranging the means of transport and food for the illegal immigrants. When facts constituting the offence were narrated to the appellant, the record shows that, he did not respond but signed against them and the trial court entered an unequivocal plea of guilty convicting him as charged followed by a sentence for payment of a fine of TZS. 20,000,000.00, or in default, serve a term of twenty years in jail. The appellant was aggrieved and decided to appeal to the High Court to challenge both the conviction and sentence imposed on him, but he was unsuccessful. Still determined to vindicate his innocence, he is before the Court armed with four grounds of appeal which can be paraphrased as follows: - (1) That the first appellate court erred in law when dismissed the appellant's appeal while there was nowhere in the proceedings showing that\ the appellant admitted the facts. (2) That the first appellate Court erred in law when dismissed the appeal without considering that the plea o f the appellant was unfinished.

(3) That the trial Court and the first appellate Court erred in law when convicted and dismissed the appeal without considering that nowhere in the proceedings shows that the appellant in his own words admitted to the commission o f the offence. (4) That the charge against the appellant was not proved. When the appeal was called on for hearing, the appellant appeared in person, unrepresented while the respondent Republic had the services of Ms. Naomi Mollel, learned Senior State Attorney. From the outset, Ms. Mollel declared the respondent's position to support the appeal. In her brief submission, Ms. Mollel addressed the Court on all of the grounds as they all revolve around the appellant's main complaint regarding the nature of his plea to the charge which resulted into his conviction. Illustrating, the learned Senior State Attorney submitted that, the record of appeal at page 8 reveals that, when the charge was read over to the appellant, he was recorded to have stated "it is true". It was the contention of Ms. Mollel that, such type of plea is considered incomplete before the eyes of law since it does not state what was it referred to by the appellant to be true. She further contended that, the omission rendered the plea of the appellant vague and hence, equivocal contrary to what was recorded by the trial court.

Ms. Mollel went on to submit that, after the said plea, the prosecuting attorney narrated the brief facts constituting the offence against which the appellant was also required to admit. However, the record reveals that, the appellant did not respond. Instead, he was made to sign against the same. She further submitted that, the trial court seemed to take the signing as a gesture of admission and proceeded to convict the appellant as charged, and sentence him, to which she argued to be an error. Explaining further, the learned Senior State Attorney contended that, the appellant's failure to admit to the facts narrated to him, adversely affected his plea and the same was reduced to an incomplete plea. It was her further argument that, in the circumstances, the appellant is considered to have not pleaded altogether and therefore, he was illegally convicted. She concluded by imploring the Court to find the appeal meritorious and allow it. Going forward, she beseeched the Court to quash the conviction, set aside the sentence imposed on him and order the matter to be remitted to Rungwe District Court to pave way to the appellant to take a fresh plea in accordance with the law. The appellant, being unrepresented lay person, had nothing to add.

Having gone through the record of appeal and hearing the submissions by the learned Senior State Attorney, the main issue for our consideration is whether or not the appellant's plea of guilty was unequivocal to warrant conviction. Our starting point is section 360 (1) of the Criminal Procedure Act (the CPA). The provision states as hereunder:- "No appeal shall be allowed in the case o f any accused who has pleaded guilty and has been convicted on such plea by a subordinate court except as to the extent or legality of the se n te n c e [Emphasis added]. The instant appeal is against conviction on a plea of guilty which has been held to be permissible under certain circumstances in our various decisions including the cases of Kalos Punda vs Republic, Criminal Appeal No. 153 of 2005 (unreported), Charles Samwel Mbise vs Republic, Criminal Appeal No. 355 of 2018 [2021] TZCA 151 (29 April 2021) and Noel Paulo @Kizungo vs The Republic, Criminal Appeal No 277 of 2020 [2024] TZCA 194 (19 March 2024). In Kalos Punda vs Republic (supra), the Court quoted with approval the decision of Laurence Mpinga vs Republic [1983] T.L.R. 166 which spelt out the criteria warranting an interference with a conviction based upon a plea of guilty wherein the following was observed:

"An accused person who has been convicted by any court o f an offence 1 1 on his own plea o f guiity" may in certain circumstances appeal against the conviction to a higher court Such an accused person may challenge the conviction on any o f the following grounds:

1. that, 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 o f guilty;
2. that, the plea o f guilty is a result o f 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 o f the offence charged. In the case at hand, the appellant faults the first appellate court to sustain the conviction on the ground that, his plea was equivocal. Going through the grounds of appeal, it is clear to us that his grievance hinged on the criteria articulated in Laurence Mpinga (supra) to the effect that, he never admitted the facts of the offence in his own words and further that, his plea was unfinished. As rightly submitted by the learned Senior State Attorney, it is on record that, the appellant appeared before the trial court on 16th

December, 2010 and when the charge was read over to him, he replied "/f is true" whereby the presiding magistrate recorded the response as a plea of guilty. Thereafter, the prosecuting attorney proceeded to narrate the facts of the case as follows: " That the 5&h accused on 15/12/2020 at 6.00pm, was at Chang'ombe street ; Bulongwe village, Msasani Ward which is within Rungwe District in Mbeya Region aiding smuggling o f immigrants by guarding the huts where illegal immigrants who were about 57 Ethiopians by nationality were hosted" COURT: Brief facts read over and explained to the 58 and 59 accused who are asked to plead thereto. 58th ACCUSED: signed 59th ACCUSED: N/A A.E.LUGOME-RM 16/12/2020. COURT: Both accused have pleaded guilty to the facts on the second count ............... v The 58th and 59th accused are also hereby convicted on the second count o f aiding the smuggling o f immigrants contrary to section 46 (1) (d) o f the Immigration Act ; Cap 54 RE 2016"

Looking at the excerpt reproduced from the record of appeal which shows what transpired before the trial court when the appellant was arraigned to court for the purpose of taking his plea, it is crystal clear that, he did not respond anything when the brief facts were narrated to him and asked to plead, apart from signing against the same. However, the trial court mistook the act of signing to be an admission of the said facts and recorded a plea of guilty. In the ordinary cause of things, the appellant was expected to state categorically whether he admitted to each of the said facts. His silence on that aspect rendered his plea to be ambiguous and incomplete. By recording a plea of guilty therefore, the trial magistrate strayed into an error for putting the words into the appellant's mouth. Unfortunately, the error went undetected by the first appellate court. Had it properly scrutinized the record, it would have held that the appellant had never responded to the facts when narrated, as such his plea was unfinished and basing on the principle in Laurence Mpinga (supra), the plea was equivocal and no conviction could be mounted basing on it. We therefore agree with Ms. Mollers submissions and find appeal meritorious and sustain it. Consequently, we quash conviction and set aside the sentence meted to the appellant.

On the way forward, we order the case file be remitted to Rungwe District court for taking a fresh plea in accordance with the law before another magistrate with competent jurisdiction. Meanwhile, the appellant shall remain in custody while waiting the implementation of the order unless admitted on bail. Order accordingly. DATED at MBEYA this 4th day of December, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 5th day of December, 2024 in the presence of the appellant in person and Ms. Elisia Paulo, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of original.