LAURENCE MPINGA v REPUBLIC 1983 TLR 166 (HC)

LAURENCE MPINGA v REPUBLIC 1983 TLR 166 (HC)

Court High Court of Tanzania - Mtwara

Judge Samatta J

June 15, 1983

CRIMINAL APPEAL 16 OF 1980

Flynote

Criminal Practice and Procedure - Appeal against a conviction based on an

unequivocal B plea of guilty - Such appeal cannot be sustained - Magistrates Courts

Act, 1963, section 16(2) (a) - Appeal against sentence may stand.

Criminal Practice and Procedure - Conviction on plea of guilty - Circumstance on

which C appeal may stand.

-Headnote

The appellant in this case was convicted on his "own plea of guilty", of robbery

contrary to s. 285 of the Penal Code, Cap. 16. He was alleged to have robbed a school

girl, aged 15, of shs. 20/=. He was convicted and sentenced under s.5(b) of the

Minimum D Sentences Act, 1972 to seven years' imprisonment. This is a second

appeal after his first appeal from the Primary Court to the District Court was

dismissed.

Held: (i) An appeal against a conviction based on an unequivocal plea of guilty

generally E cannot be sustained, although an appeal against sentence may stand;

(ii) an accused person who has been convicted by any court of an offence "on

his own plea of guilty" may appeal against the conviction to a higher court on any of

the following grounds: F

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 of guilty;

2. that he pleaded guilty as a result of mistake or misapprehension;

3. that the charge laid at his door disclosed no offence known to law; and

G

4. that upon the admitted facts he could not in law have been convicted

of the offence charged.

Case Information

Order accordingly. H

Cases referred to:

1. R. v London Quarter Sessions [1957] 3 All E.R. 28

2. Regina v Waziri s/o Musa, 2 T.L.R. (R) 30. I

1983 TLR p167

SAMATTA J

M. Sengwaji for the respondent. A

[zJDz]Judgment

Samatta, J.: This appeal reminds me of the question which Lord Goddard, C.J., posed

in R.v. London Quarter Sessions [1957] 3 All E.R. 28 at p. 31: "How can a person who

pleads guilty deliberately be aggrieved by a conviction?." B

The appellant in the case now before me, Laurence Mpinga, was convicted, upon "his

own plea of guilty", of robbery, contrary to s. 285 of the Penal Code, by the Primary

Court of Chikundi. He was alleged to have robbed a school-girl, aged 15, of Shs. 20/=.

When the charge was read over and explained to him his plea was: C

It is true I robbed her shs 20/= by using violence.

This was entered by the court as a plea of guilty to the charge. In accordance with the

procedure outlined by Mahon, J. (as he then was) in Regina v Waziri s/o Musa, D 2

T.L.R. (R) 30, at p.31, the facts of the case were then outlined by the complainant,

Fatu Hashimu. These revealed that the appellant had pounced upon the young girl

and dragged her for some distance before taking away, by force, her currency note of

twenty shillings. When the appellant was asked to say whether or not the given

outline of facts E was correct he answered as follows:

What the complainant has said is nothing but the truth. F

Upon the strength of his plea and this reply the court convicted the appellant as

charged, i.e. of robbery, and it then proceeded to sentence him, under s.5(b) of the

Minimum Sentences Act, 1972 to a term of seven years' imprisonment. The appellant

appealed against the (whole) decision to the District Court of Masasi district, without

any success. G He still says that he should not have been convicted; hence the

present appeal. In his petition of appeal the appellant asserts that the complainant (i.e.

the young girl) is his close relative and that he has been her guardian since she was

aged two. According to the appellant, the young girl was a truant and he took away

the shs. 20/= from her with a H view of correcting her behaviour and forcing her to

go back to school.

Section 16 of the Magistrates' Courts Act, 1963, provides for appeals from Primary

Courts to District Courts but subsection (2) (a) thereof lays down that: I

1983 TLR p168

SAMATTA J

No appeal shall be allowed in any case of an accused person convicted on his

own plea of A guilty, except against sentence or an order for the payment of

compensation.

If the appellant had in fact and in law pleaded guilty to the charge of robbery, then he

B could not be heard in the District Court to complain against his conviction. I say in

fact and in law because, as I apprehend the law, an accused person who has been

convicted by any court of an offence "on his own plea of guilty" may in certain

circumstances appeal against the conviction to a higher court. Such an accused person

may challenge C the conviction on any of 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 D as a plea of guilty;

2. that he pleaded guilty as a result of mistake or misapprehension;

3. that the charge laid at his door disclosed no offence known to law; and,

E

4. that upon the admitted facts he could not in law have been convicted

of the offence charged.

Although he does not expressly say so, the appellant in the instant case suggests that

he F pleaded guilty to the charge of robbery as a result of mistake or

misapprehension on his part. It is a correct proposition of law, of course, the validity

of which it is neither possible nor safe to dispute, that there cannot be an offence of

robbery unless theft has taken place, and that for theft to be proved it must be

demonstrated or unequivocally G admitted that there was a fraudulent taking or

conversion - a tortious taking or conversion being insufficient. It is also a correct

proposition of law, I think, to say that the defence of bona fide claim of right,

provided for in s.9 of the Penal Code, applies to the offence of robbery, too. It is not

necessary, to establish a bona fide claim of right in H the case of robbery, for the

accused to satisfy the court that he had the honest belief that he had the right to take

the property in the way in which he did. If, as the appellant now asserts, he used

force against Fatu with the intention of correcting her behaviour and not for the

purpose of stealing, neither lawyer nor a layman would, I think, describe I that

conduct as amounting to stealing. But is that what happened? I think not. I

1983 TLR p169

SAMATTA J

cannot see how, if the appellant's assertion were true, he, as sane person and an adult,

A could possibly have spoken to the court under a misapprehension as to the nature

and gravity of the accusation preferred against him. In my settled view, the appellant

pleaded, and intended to plead, guilty to the charge. What, I ask, was the difficulty in

pointing out to the Primary Court, a tribunal whose atmosphere is, comparatively

speaking, fairly B informal and simple, that he did not intend to steal the shs. 20/=? I

get no answer. The appeal against conviction is plainly a shot in the dark; it is

probably a product of an advice from a barefoot "lawyer", whom the appellant must

have met in prison. In my view the District Court erred in law in entertaining the

appellant's appeal against C conviction. That appeal was incompetent in law, and

should, therefore, have been struck out.

The appeal against sentence is competent in law, and I proceed, therefore, to consider

it. D Mr. Sengwaji, counsel for the Republic, having drawn my attention to two

facts: (1) that the appellant is a first offender, and (2) that the money which was

obtained in the course of the perpetration of the robbery did not exceed one hundred

shillings, urged me to say that the Primary Court could, and should, have held that

this was a proper case in E which to invoke the merciful provisions of s. 6 of the

Minimum Sentences Act, 1972, and should have proceeded to deal with the appellant

as if the Act had not been enacted. With respect, I am inclined to think that there is

some merit in the argument. Bearing in mind, among other things, that the appellant

had pleaded guilty, I think this is a F case where justice ought to have been tempered

with mercy. This is what I propose now to do. Taking into consideration all the

competing factors, I think a sentence of four years' imprisonment would have

adequately reflected the society's revulsion against the appellant's antisocial conduct.

The sentence of seven years' imprisonment is reduced accordingly. G

I have sufficiently demonstrated, I hope, why the purported appeal against conviction

must be, and is, struck out, and why the appeal against sentences is allowed to the

extent herein indicated.

H Order accordingly.

1983 TLR p170

A