Mboka s/o Mwaisyula vs Republic (Dc Criminal Appeal No. 20 of 1998) [1998] TZHC 2319 (22 June 1998)

MOSHI.L J. IN THE HIGH COURT • OF TANZANIA . AT MBEYA DC CRilINAL APPEAL NOo 20 OF 1998 (From Mbeya District Court Original Criminal Case No. 260 of 1998 Before: I.A. Mtiginjola - D:istrict Magistp: .. _t_E:) MBOKA S/0 i 1 1WAISYULA 0000000000000 APPELLANT Versus THE REPDBLIC 0 0 0 0 • 0 0 0 0 e O O .D O C O O O O Q 0 RESPONDENT JUDGMENT On 22.6.98 I allowed the appeal, quashed the conviction, set aside the sentence and ordered the immediate release of the appellant from prison.unless otherwise lawfully held. I reserved my reasons which I now give. The appellant, Mboka Mwaisyula, was indicted for Forcible entry, contrary to section 85 of the Penal :Code before the district court of Mbeya. He pleaded guilty to the charge, was convictd, and sentenced to eighteen months imprisonment. The conviction and sentence aggrieved him, hence this appeal which was preferred and argued before rrie by his learned advocate, Mr. Mwakolo, in the presenc~ of the learned advocate for the Republic, Mr. Boniface, who declined to resist the appeal.· The appeal against conviction would have be'en inc::ompetent in terms of section 360(1) of the Criminal Procedure Act 1985, but for th.e fact. that. the plea of the appellant was equivocal as rightly submitted by both Mr. Mwak•l6 , and Mr. Boniface. The statement, .'of the facts adduced by· the public prosecutr,r, and accepted by the appellant, fell short of establishing,two essential ingredients of the offence charged. First, the purpose for the fr,rcible entry was not disclosed in the statement of the facts. Under section 85 of the Penal Code, entry must be for purposes of taking possession. But this essential ingredient was not mentioned, let alone admitted ·by,the appellant. Second, the type of force used was not disclosed in the statement of the facts for the purpose of enabling the appellant to hear and admit it, and also to enable the trial court 0 •••••• 0 ./ 2

• 2 to determine whether in law it amounted to for'ce. It is the law that a plea of guilty must contain an unequivocal admission of every ingredient necessary to constitute the offence with which an accused person is charged. In the words of the Court of Appeal for Ea.stern Africa in tiThat in any case in which a conviction is likely to proceed on a plea of guilty (in other. words, when. an admission by the accused is to be allowed. to take the place of the otherwise necessary strict proof of the charge beyond reasonable doubt by the prsecution) it is most desirable not only that every constituent of the charge shuld. be_explained to the accused but that he should be required to admit or d.eny every constituent and that what he says should be recorded in a form which will satisfy an appeal court that he fully understood the charge and pleaded guilty .to every element of it unequivocallyo 11 In this case, the appellant, as explained, did not plead guilty to every consti- tuent of the offence charged unequivocally. His conviction, therefore, cannot be allowed to stand. The offence is a misdemeanour which carries maximum penalty of two years imprisonment. As the appellant has already served almost three months of the sentence awarded, there shall be no order for retrial. It was for the foregoing reasons that I allowed the appeal, quashed the conviction, set aside the sentence, and ordered the immediate release of the I' . 11.T MBEYAo ,., ,_, _,. __ -- ... ~ ~ . .< 29 J~i'e ·199s;· For ApJ)ellant: · Mr. Mwakolo, advocate. For Republic: Mrs. Malmru, SSA. B.P. MOSHI JUDGE •