Geoffrey s/o Wamala vs Republic (Miscellaneous Criminal Application No. 116 of 2000) [2000] TZHC 534 (28 August 2000)

I J \ ' ;J IN THE HIGH C0URI' OF TANZANIA .NL' MHANZA MTSCEtLANF.OUS CRIMINAL APPLICATION N0.116 OF 2000 IN THIC VJAT'i:£R OF AN APPLICATION FOR RJi:VISI0N AND IN THE f"'J.TTER OF CRH1INAL· CA.SE NO. 7 ·OF 2000 IN TRE DISTRICT crn:.m:r CJ:' I:''AEZA DISTRICT AT H--IANZA. GE0FREY s/o WAMJ-1.LA Q 0 0 O O 0 O O o o o o o o o o O 0 O O O 0 APPLICANT VERSUS THE HEPUBLIC oooooooonoooooooooooooooooo RESPONDENT RULING ~JUDGE., The application for·revision of lower court proceed:i.,ngs and sentence was made under sections 372 and 373 of the Criminal Procedure Act, 1985. Section 373 does not appear to be appropriate because it is meant to authorize the High C0:1rt to act ~~ ~~':: to revise lower court proceedings, judgment on order. Be that as it may. The applicant was prosecuted, convicted an.d sentenced for being unlawfully present in the Country., He apparently pleaded guilty to the charge but before thi,... court he has claimed that in fact he had valid documents which legalised his presence in the country., Initially he had gone to the Ugc:>.nda High Commission in Dar e.s Salaam where he obtained a document 11 To whom it may concern"o It acted as a temporary travel document to enable him to travel to the boarder town of Namanga and leave the country .. It was valid upto 27/l1/2000o I have examined the document and it bears an Immigration rubber stamp which shows he exited from the tountry on 21/ 1 +/20000 On 17th JuJ_y, 2000 he was arrested in Mw;=mza by Immigration officials. According to a statement of facts which was given by the prosecutor when the applicant was before the lower court, the applicant had no document which authorized his presence in the conntry. He

accepted those facts as true and was consequently convicted on his 01,1m.plea of guilty ax1d was sentenced to a fine of Shs460,000/= or 12 months imprisonment in default., He was further sentenced to three ·.months. imprie.onment o He paid the fine and has been serving the thi~ee months imprisonment. Dur_ing the hearing of the revision proceedings I have required evidence from an Imm_1.gration Officer regarding the claim by the applicant that he had with him valid documents which made his presence lawful but that the documents were with the Immigration c;'/• ) ••·• people'. The document the applicaYJ.t had in mind·. is one which the Immigration Officer.who gave evidence in place of an affidavit demonstrated ably that it was forged and not genuine. I am satisfiei indeed that the so called Certificate of Identity which was supposed to be valid till 10/12/2000 was forged. The applicant ' would knovr the circumstances in which he obtained the false document;, The applicant has given stories that he did not mean to plead guilty to the charge but the pains I have taken to investigate that claim have left me in no doubt at all that th<::: applicant either re-entered the Country and remained there unlawfully or he never left the Country afteT 20/4/2000 when the Uganda High Commission issued him with the ' 1 To 1 :Tnom It May Concern" docun1ent 0 Indeed, in mitigation before the lower court, he said as much, tha.t he travelled to Mwanza instead o:f travelling to Namanga, for the reasons that he gave in the lower Court. According to section 30 of the Immigration Act Noo7 of 1995, the burden ( on balance of probability) wa.s on the applica11t to prove that his presence in the country was lawfulo He did not provide snch proof to the lower court and did not do so before me ..

r ... 3 Section 31{2) . .of the same Immigration !.ct, 1·995 authorizes a Court to impose qpth a fine· and :impri:soriment. The trial magistrate _- imposed such a sentence on the applicari.t and I cannot say he erred in law. . .· This application ,must and is·h~reby dismissedo ·.·. ·:·t ;' . JG. A. MROSO JUDGE At M:wanza; 28/8/2000.