Daud v Republic (Criminal Appeal No. 10 of 2000) [2000] TZHC 663 (31 May 2000)

22 TANZANIA LAWREPORTS [2002] TL.R. a WINFRID A DAUD v. REPUBLIC HIGH COURT OF TANZANIA AT MWANZA T» (Mroso, J.) CRIMINAL APPEAL No. 10 OF 2000 C (From the decision of the Court of the Resident Magistrate, Mwanza, JM Somi, PRM) Criminal Law - Immigration - Residing in Tanzania without a residence permit P or pass — Section 31(l)(i) and (2) of the Immigration Act 1995. Criminal Practice and Procedure - Plea of guilty - Whether the plea was equivocal. The appellant, a Ugandan, was arrested within Mwanza Municipality and charged ® with unlawfully entry into Tanzania on the first count and being unlawfully present in Tanzania on the second count. After the charges were read to her she replied “ It is true. ” The facts as given by the prosecutor were that the appellant had been found within Mwanza Municipality on 21 January 2000 but had neither a national passport F nor a residence permit; that it was not known through which border she had entered Tanzania and she never reported to the Immigration Officer to report her presence in Tanzania.She admitted the facts when they were put to her and added that she had come to Tanzania in 1996. The Court found that the appellant had pleaded guilty to G the charges and convicted her on both counts. She was sentenced to a fine of TZS. 60 000 or two months ’ imprisonment in default on each count. The sentences were to run concurrently. She was further ordered to serve an extra year on each count in addition to the about sentences. These were also to run concurrently. Being aggrieved by the conviction and sentence she appealed on three grounds. The first was that the H trial magistrate had erred in sentencing her twice on the same charges. The second ground was that the trial magistrate convicted her on a plea which was equivocal. In third and final ground she complained that the sentence was unreasonably excessive. j Held: (i) There was no ambiguity in the particulars of the offence and acceptance of their correctiness would be a proper plea of guilty;

WINFRIDA DAUD v. REPUBLIC (ii) The sentences of imprisonment in default of payment of the fines, like the A fines, cannot be ordered to run concurrently; (iii) The sentences of a fine of TZS. 60 000 or two years imprisonment in default on each count though severe were not excessive; B (iv) The additional sentence of one year imprisonment on each count was illegal and amounted to sentencing the appellant twice on each count. Orders accordingly Q Cases referred to:

1. Shija Mihambo v. Republic [1976] LRT n. 38
2. Republic v. Omari Isumail [1970] HCD n. 341 Statutory provisions referred to: D

1. Immigration Act 1995 Number 7 of 1995, section 31)(l)(i) and (2)
2. Penal Code, sections 29(iii)(a), 36 E Mr Galati, for the Appellant Mr Feleshi, for the Respondent JUDGMENT F (Delivered 31 May 2000) Mroso, J.: The appellant was charged in the Court of the Resident Magistrate, at Mwanza with two counts under the Immigration Act G Number 7 of 1995, henceforth to be referred to as the Act. On the first count she was charged for unlawful entry into Tanzania contrary to section 31(1 )(i) and (2) of the Act. The particulars of offence read: Winfrida Dauda on 21 January 2000 at or around 12:30pm. At Steco Hair Saloon (sic) along Nkurumah (sic) road, in the Region of Mwanza, Mwanza Municipality being a citizen of Uganda did unlawfully enter in Tanzania without being in possession of her National Passport or any valid legal (sic) travel document. 1

24 TANZANIA LAW REPORTS [2002]T.L.R. A On the second count she was charged with being unlawfully present in Tanzania contrary to section 31 (1 )(i) and (2) of the Immigration Act Number 7 of 1995. The particulars of offence read: Winfrida Dauda on 21 January 2000 at or around 12:30pm at Steco Hair B Saloon (sic) along Nkurumah road in Mwanza Region, Mwanza Municipality being a citizen of Uganda did unlawfully stay in Tanzania without being in possession of any pass or permit issued to him by any Immigration Office in Tanzania.When the charges were read to the appellant she replied- “ It c is true ” on both counts. The Court, presumably thought the appellant may have intended to plead guilty to both charges. So it called upon the prosecutor to narrate brief facts of the case. Since the statement of facts is fairly brief, it may be helpful to reproduce them here. They go like this: D The accused is a Ugandan National who has no passport of her country. It is not known how she came into Tanzania, that is through which border she crossed. However she never reported to Immigration Officer after having crossed into Tanzania. On 21 January 2000 she was arrested by E Immigration Officer along Nkurumah Street at Steco Saloon (sic) for having no passport of her own country or valid travel document. She was brought before this Court to answer this (sic) charge. On top of that she has no valid permit issued to her to stay in this country. That is all for the facts. F The appellant then said: I admit the fact (sic) as narrated above. I came here in 1996 and I have since then stayed here. G The Court found that the appellant had pleaded guilty on both counts and convicted her accordingly. It sentenced her to fine of TZS. 60 0O0 or 2 years imprisonment in default on the first and second count respectively. It ordered that the prison sentence should run concurrently H It further ordered that: In addition to that the accused to be jailed for one (1) more year for each count ... Sentence to run concurrently. The appellant was aggrieved by the conviction and sentence and has 1 appealed to this Court, submitting three grounds of appeal which

WINFRIDA DAUD v. REPUBLIC 25 were drawn and argued by her advocates, Galati Law Chambers. In a the first ground it is complained that the Trial Court erred in sentencing the appellant twice on the same charges. The second ground of appeal is that the trial magistrate erred in law in convicting the appellant basing on her plea, which was equivocal. Finally, in the third ground b she complained that the sentence was “ unreasonably excessive ” . The learned State Attorney for the respondent Republic agreed with the appellant on the first and third grounds of appeal but submitted that the pleas of the appellant were unequivocal. c In arguing the second ground of appeal Mr Galati for the appellant submitted that the words in the narrated facts that the prosecution did not know how the appellant came into Tanzania contradicted the assertion in the particulars of the offence on the charge sheet in D which it was categorically stated that she entered Tanzania unlawfully and without being in possession of a passport or any valid legal travel document. He submitted that when the appellant, therefore, said she admitted the facts as narrated, she was not necessarily pleading guilty E to the charge and that the plea was in effect equivocal. I should say that the narration of the facts could have been better and more elaborate. But I am unable to agree with the learned advocate for the appellant that the plea on both counts was equivocal. The appellant having admitted by “ It is true ” that being a Ugandan citizen she entered Tanzania without being in possession of her national passport or any valid travel document, she had in fact pleaded guilty to the first count, even though in certain circumstances the words G “ It is true ” do not necessarily mean an unequivocal plea of guilty. In the circumstances of the case under discussion, however, there was no ambiguity in the particulars of the offence and acceptance of their correctness would be a proper plea of guilty. The words in the H narrated facts that it was not known how she came into Tanzania, should not be read in isolation. The maker of the statement explained them when he/she said “ that is, through which boarder she crossed ” . In other words, what the prosecution did not know was the particular i

26 TANZANIA LAW REPORTS[2002]TL.R. A boarder - Uganda-Tanzania or Kenya Tanzania or Rwanda-Tanzania, for example - which she crossed when entering Tanzania. Those words did not contradict anything in the particulars of offence in the first or second counts on the charge sheet. I, therefore, reject the argument B that the pleas are equivocal. The cases of Shija Mihambo v. Republic (1) and Republic v. Omari Isumail (2) which the learned advocate for the appellant cited to Court in support of his submissions are distinguishable. In those cases the statement of facts did not disclose c any offence, which was not the case here. The offences of unlawful entry into Tanzania and unlawful stay in Tanzania were in my view disclosed by the particulars of the offence together with the narrated facts. I dismiss ground 2 of the petition of appeal. D As regards sentence, let me hasten to say that the order that the imprisonment sentences in default of payment of the fines were to run concurrently was wrong. Just like the fines could not run concurrently, the prison sentences in default of the fines could not be ordered to E run concurrently. See the proviso to section 36 of the Penal Code where it stated that it shall not be lawful for a court to direct that a sentence of imprisonment in default of a fine to be executed concurrently with a former sentence under section 29(iii)(a) of the Penal Code. F I agree with the appellant that the additional sentence of one year imprisonment was illegal and amounted to sentencing her twice on each count. The sentences of a fine of shillings TZS. 60 000 or two years G imprisonment in default may possibly be considered severe but not excessive. I, however, allow the appeal on the first ground but dismiss it on the second and third grounds. It is so ordered. H _________________________________ I