IN THE COURT OF APPEAL OF
AT
MWANZA
(CORAM: LUBUVA, J.A., MROSO, J.A., And
RUTAKANGWA, J.A.)
CRIMINAL
APPEAL NO. 58 OF 2005
1. JOHN SAMWEL @ KABAKA
2.
CHARLES
BAKARI ……...…………………..….… APPELLANT
VERSUS
THE REPUBLIC ….……..…………………..….…. RESPONDENT
(Appeal
from the Judgment of the High
Court
of Tanzania at Mwanza)
(Mchome,
J.)
dated
the 13th day of May, 2003
in
HC
Criminal Appeal No. 2, 3, 4 of 1994
-------------
JUDGMENT
OF THE COURT
7 & 16 March
2007
LUBUVA,
J.A.:
In
Mwanza District Court Criminal Case No. 245 of 1993, the appellants, John
Samwel @ Kabaka and Charles Bakari were charged with and convicted on their own
plea of guilty of the offence of armed robbery contrary to sections 285 and 286
of the Penal Code. They were sentenced
to a term of thirty (30) years imprisonment.
It is
apparent from the record that at the trial when the charge was read out to the
appellants, they pleaded guilty. The
facts were read out by the prosecutor which the appellants also accepted as
true. Accordingly, as shown earlier, they were
convicted and sentenced.
Dissatisfied,
they unsuccessfully appealed to the High Court alleging that the police
tortured and forced them to plead guilty in court. Dismissing the appeal, the learned judge
(Mchome, J.) held that there was no way in which the High Court could entertain
the appeal as the law under the provisions of section 360 (1) of the Criminal
Procedure Act, 1985 (the Act) does not allow.
Still
aggrieved, this appeal has been lodged.
The appellants are unrepresented and the respondent Republic, is
represented by Mr. Feleshi, learned Senior State Attorney.
From the
memoranda of appeal filed by the appellants
the main complaint is the following.
That the learned judge on first appeal erred in holding that they had
unequivocally pleaded guilty. That they
pleaded in court in such circumstances that they did not know what they were
doing. That the police tortured them
until the time they were taken to the Court. Whatever they said in court was
taken as a plea of guilty which in fact was not.
At the
commencement of hearing the appeal, the appellants had filed together with
additional grounds of appeal PF.3 Form in respect of each of them purporting to
have been issued by the Police Station Ngudu on 14/7/1993 for medical
examination. The PF.3 Forms in respect
of the appellants had not been tendered at the trial. The appellants had sought to tender the PF.3
Forms in this Court to support their ground of appeal that they pleaded at the
trial as result of torture.
Asked by
the Court how and when the PF.3 Forms were obtained, the appellants
prevaricated. In order to ascertain the
authenticity of the PF.3 Forms, the learned Senior State Attorney prayed for adjournment
of the hearing of the appeal. However,
upon reflection the appellants opted to abandon the ground relating to the PF.3
Forms. Therefore in this judgment no
reference will be made to the PF.3 Forms.
When given
the opportunity to address the court, the appellants did not have much to
say. The first appellant, John Samwel @
Kabaka, said when the charge was read out in court he could not speak on
account of the injuries sustained from the police torture. He further asserted that what is shown on
record as his plea of guilty are not his words, they are the magistrate’s own
words.
The second
appellant,, Charles Bakari, did not say much either. He said that he pleaded guilty in Ngudu
District Court Criminal Case No. 71 of 1993 and not in this case. Even in that case in Ngudu, he insisted that
he had done so under torture by the police.
Like the first appellant, he alleged that what is shown on the record as
his plea of guilty are not his words but
the trial magistrate’s own words.
Mr.
Feleshi, learned Senior State Attorney, vehemently resisted the appeal. He said the courts below cannot be faulted in
their finding that the appellants had unequivocally pleaded guilty. On this, the Attorney further submitted, the
record is unambiguously clear. Mr.
Feleshi then set out the sequence of events leading to the conviction of the
appellants. On 15.7.1993 when the charge
was read out, each of the appellants pleaded, “it is true”.
Then the public prosecutor stated the facts and tendered the gun and 16
bullets alleged to have been used in the commission of the offence. The appellants did not object and were
tendered in court collectively as Exhibit P.1.
Again the appellants in clear terms stated “it is true”. At the
end of it all the trial magistrate convicted the appellants and accordingly
sentenced them.
On these
facts as borne out from the record, Mr. Feleshi urged that there is no merit in
the appeal. The appellant having
unequivocally pleaded guilty, they cannot now be heard to deny that they did
not plead guilty. He also submitted that
from the facts as shown on the record, the learned judge correctly held that
the appeal does not lie in terms of the provisions of section 360 (1) of the
Act. At any rate, the Senior State
Attorney maintained, none of the grounds on which a person convicted on a plea
of guilty may appeal has been shown. The
Court was referred to the case of Lawrence
Mpinga v. Republic (1983) TLR 166.
The issue
for consideration is whether on the facts as reflected from the record, the
appellants unequivocally pleaded guilty to the charge. As correctly submitted by Mr. Feleshi,
learned Senior State Attorney, the record is loud and clear. When the charge was read out, the appellants
stated “it is true” . Likewise, when the facts were outlined to them
by the public prosecutor and the exhibit, namely the gun and the bullets
alleged to have been used by the appellants in the commission of the offence
were tendered, they also said “it is
true” . The extra judicial
statements in which they also admitted to have committed the offence were
tendered as well without objection.
In the face
of these facts, it is unbelievable that the appellant would urge this Court to
accept that these are words of the trial magistrate and not theirs. These are serious allegations which the Court
can hardly take lightly. However, there
should be cogent clear evidence that the trial magistrate did not record the
plea as alleged. I n this case there is
no evidence on record to support the allegation. Therefore we take the record as correctly
reflecting what the appellants said in court when the charge was read out to
them.
On the
basis of the record we entertain no doubt in our minds that the learned judge
correctly dismissed the appeal. The appellants’
plea being unequivocal, they were correctly convicted on their own plea of
guilty. It would follow that no appeal
would lie on a plea of guilty. The
provisions of section 360 (1) of the Act provides to this effect. It reads:
360 (1) 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 this
case, the appellants having been convicted on their unequivocal plea of guilty
cannot now be heard to complain about the conviction. On the other hand, considering the plea as
such, we are unable to find either that the plea was ambiguous or that it was
taken under mistake or misapprehension.
If either of these circumstances had been revealed, the Court may allow
on appeal the accused to challenge the conviction on a plea of guilty.
In Laurent Mpinga v. Republic (1983) TLR
166 the High Court (Samatta, J. as he then was) had occasion to consider
circumstances in which a person convicted on his own plea of guilty may
appeal to challenge the conviction. We
fully subscribe to the principle enunciated in the Laurent Mpinga (supra) case.
In this case, none of the circumstances addressed in Laurent Mpinga has been disclosed. Therefore, the learned judge correctly held
that the appeal cannot be entertained under the provisions of section 360 (1)
of the Act.
With regard
to the sentence against which an appeal would lie, the sentence imposed is the
minimum provided under the law. The
appeal on sentence is also devoid any merit.
For these reasons, the appeal is
dismissed in its entirety.
DATED at MWANZA this 16th day
of March, 2007.
D. Z. LUBUVA
JUSTICE
OF APPEAL
J. A. MROSO
JUSTICE
OF APPEAL
E.M.K. RUTAKANGWA
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
(S. M. RUMANYIKA)
DEPUTY
REGISTRAR
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