ISMAIL S/O BUSHAIJA v REPUBLIC 1986 TLR 1 (HC)

ISMAIL S/O BUSHAIJA v REPUBLIC 1986 TLR 1 (HC)

Court High Court of Tanzania - Mwanza

Judge Katiti J

August 14, 1986.

(PC) CRIMINAL APPEAL NO. 1 OF 1986

Flynote

Criminal Practice and Procedure - Assessors - Failure or omission to involve assessors when

taking plea - Whether curable B defect.

Criminal Law - Pleas - Accused convicted on his own plea of guilty - On appeal accused alleges

plea was entered by the magistrate against his wish - What appellate court to do.

-Headnote

In a Primary Court the accused was convicted, on his own plea of guilty, of robbery with

violence. When taking the plea, C convicting and sentencing the accused the magistrate did not

involve assessors. The first appellate court dismissed the appeal by applying the provisions of

s.20(2)(a) of the Magistrate's Courts Act, 1984. On a further appeal to the High D Court the

judge considered what an appellate court should do where the appellant alleges that the plea of

guilty was planted.

Held: (i) Before an appellate court upholds a purported plea of guilty it has to satisfy itself that:

E

(a) the charge drawn and signed by the trial magistrate is an offence known to law;

(b) it is an offence over which the court has jurisdiction;

(c) the offence charged is sufficiently identifiable from the facts as lodged by the

complainant; F

(d) the plea was unequivocal;

(e) where applicable, the assessors played their statutory role;

(ii) the appellant did not plead guilty to an offence properly and accurately

identifiable from the facts presented; G

(iii) failure or omission to involve assessors and have their opinions on the

question of guilt or innocence of the accused violated the provisions of s.7(2) of the Magistrate's

Courts Act 1984; and is an incurable defect.

Case Information

Appeal allowed. H

Case referred to:

1. Jumanne Hassan Kaluwona v R. [1970] H.C.D. 36 I

1986 TLR p2

[zJDz]Judgment

A Katiti, J.: Before Ibwera Primary Court, stood Ismail Bushaija charged with the offence of

robbery c/ss 285 and 286 of the Penal Code Cap. 16 of the Laws. Purportedly on a plea of guilty,

the trial Court without involving the assessors found him guilty as charged, and hence the

imposition of the statutory minimum sentence for the B offence - seven years imprisonment.

The said Ismail Bushaija aggrieved unsuccessfully appealed to the District Court, that confirmed

the conviction and dismissed the appeal. I shall hence and herein refer to him as the appellant,

as he has now appealed to this Court.

C The first appellate Court did dismiss the appellant's appeal, purely on technical grounds, that

were unfortunately not related to the spectrum of the case generally in the face of the appellants

charge that he never pleaded guilty and that the plea was planted. The first appellate court found

an apparently easy route to dismiss the appeal by applying the D provisions of section 20(2)(a)

of the Magistrate's Court Act 1984, that stipulate that "no appeal shall be allowed in any case of

an accused person convicted of his own plea of guilty except against sentence or order of the

payment of compensation." While I concede we have such statutory provisions, I have to hastily

add, that the said provisions are not E supposed to operate in a vacuum, they are meant to apply

to a certain set of pertinent facts and circumstances. Thus where an appellate court is faced with

an appeal, resultant from a plea of guilty, it should not dismiss the same mechanically simply

because on the face of the record there was a plea of guilty. Such court is before upholding the

F purpoted plea of guilty enjoined to first satisfy itself, first, that the charge drawn and signed by

the trial Magistrate is an offence known to law, second, that it is an offence over which the

Court has jurisdiction, third, that an offence charged is G an offence that is sufficiently

identifiable from the facts has lodged by the complainant, fourth, that the accused's plea on the

same was unequivocal and fifth, that, where applicable the assessors played their statutory role.

All these questions can easily be answered through critical examination of every aspect of the

case. For however well intentioned the plea of H guilty may be the conviction cannot be

rendered valid, if the charged offence is not known to law, or where there is no jurisdiction, and

where the plea is equivocal.

The appellant does contend in his memo of appeal, which he did not enter appearance to

prosecute, that the trial I magistrate, did fake the plea of guilty, contending further that the

vindication of this allegation, was that even the assessors were not involved in the

1986 TLR p3

KATITI J

A finding of his guilt. The appellant is in summary saying that he never pleaded guilty at all.

The Republic represented by Mr. Songoro a State Attorney, on the other hand declined to

support conviction, saying that, the particulars, ambivalent as they were, did not even contain

all the element of the offence of robbery with violence C/s 265 and 286 of the Penal Code Cap.

16. B

I have taken purposeful opportunity and liberty to examine the record in deserving depth, in the

above direction and I have found therein features that procedurally, substantively and

fundamentally go to the root of the legality of the C conviction, aspects that unfortunately

escaped the corrective touch by the first appellate Court. Of course, apparently the trial

magistrate does seem to have been more enthusiastic to reach conviction than rationally dealing

with the case. I shall now and hence go into the above mentioned features.

D This criminal matter, arose out of the complaint by the complainant Martine s/o Bemanka

before Ibwera Primary Court. It is common ground that a Primary Court has a dual carriage way

for receipt of complaints in a criminal area, and that is first, Criminal proceedings may arise out

of the initiative by the Police by presenting a written and signed charge to the said Court, the

Primary Court Magistrate only having a peripheral duty of checking the propriety of sections

and E related statutes etc. The second way, which is relevant and important in this case, is

where a private complainant on his own initiative lodges a complaint of facts constituting an

offence. What is a magistrate enjoined to do? The answer is this. F It is trite law now, that

where a complainant lodges a complaint of facts constituting an offence, in respect of which a

Primary Court has jurisdiction, the magistrate of that particular Primary Court, is unjoined to

draw-up and sign a charge, with such particulars as are reasonably necessary, to identify the

offence, or offences, including the law and section or G division under which the accused is

charged, see Rule 20 of the Primary Court Criminal Procedure Code third schedule to Magistrate

Courts Act 1984. In this case, the magistrate did try but our worry, which was not the worry of

the first H appellate court, is the identity of the offence. Of course, the magistrate cannot

dream of complaints, they have to be filed by the complainant. In this case to understand how

the charged offence was arrived at one has to see the complaint of facts given by the

complainant. He inter alia complained thus: I

1986 TLR p4

KATITI J

A Mnamo tarehe 2/9/85 muda wa saa 6.00 mchana nilikwenda kwa Ismail Bushaija kumdai

fedha zangu nilizomlimia. Hapo hapo, ndipo aliponipiga teke kwenye ubavu wa kushoto, na

kunivuta nywele kichwani na kuninyofua. Ndipo watu wawili pamoja na mwanamke mmoja

ambao walikuwa wakimkatia mbao wakanivamia, na kuanza kunipiga, fimbo mgongoni na

mkono wa kulia. B Ndipo alipo waambia hao wenzake kwamba wanipige waniue, wanichimbie

shimo wanifukie. Ndipo Ismail aliponinyanganya kofia moja, kiko, pamoja na shs. 150/=

nilikuwa nimezifunga kwenye kitambaa ambazo zilikuwa kwenye koti langu, nililokuwa

nimevaa akazitoa. C

It is from such complaint of facts, that the magistrate drew a charge of robbery c/s 285 and 286

of the Penal Code Cap. 16 of the Laws. Without entering into the area of credibility, which has

no place here, the above complaint of facts, D considering the essential elements of the offence

of robbery over which Primary Courts have jurisdiction, I do not think they were sufficiently

established by the facts contained in the complaint above. While it could be argued that there

was E violence, such violence's functional aspects in the process, is difficult to allocate a place,

in the facts presented above. It is trite law - Jumanne Hassan Kaluwona v R. [1970] H.C.D. No.

36, to mention one of the many cases on this aspect, that violence or the threat thereof, must be

applied either before the theft to facilitate such stealing and to obtain the property, or after the

theft, to retain the thing stolen, or to prevent its recovery. In this case, there is difficulty in F

determining the purpose of violence. Equally it is doubtful, the appellant who had the status of

an employer, could steal his employees property. I would agree with Mr. Songoro, that the

complaint as above lodged and charged, did not G satisfactorily establish that the offence

charged was offence committed, and the plea thereto even if unequivocal, could not have the

effect of putting the matter right, as it is not easy to say that the appellant was even aware, that

he was actually pleading guilty to the serious offence of robbery with violence c/ss 285 and 286

of the Penal Code, if in actual fact he did. H

Further examination of the record, has revealed absence of compliance with the statutory

provision section 7(2) of the Magistrates Courts Act 1984. These provision provide thus:

I 7(2) All matters in the Primary Court including a finding in any issue, the question of

adjourning the hearing, an application

1986 TLR p5

A for bail, a question of guilt or innocence of an accused

person, the determination of sentence, the assessment of momentary award and all

questions and issues whatsoever shall, in the event of difference between a magistrate and the

assessors or any of them, be decided by Votes of the majority of the B magistrate and assessors

present and in the event of an equality of Votes, the magistrate shall have the casting vote, in

addition to his deliberative vote.

The above underlining has purposefully been made by myself. As aforementioned the record

shows there was failure to C partly comply with the above provisions. It is to be observed with

a naked eye, that the assessors were not involved in any sense on the question of guilt, or

innocence of the appellant. But the assessors participation in this regard is statutorily mandatory,

and does not lie within the available options, the trial magistrate is discretionally allowed to

take. Thus failure D or omission to associate the assessors and have their opinions on the

question of guilt or innocence as dictated by section 7(2) of the Magistrates Court Act 1984, is a

defect that is not even tolerable nor curable, not even under the doctrine of substantial Justice.

Thus apart from doubts whether the appellant pleaded guilty to an offence properly and E

accurately identifiable from the facts presented. We have an incurable breach of statutory

command, either of which severally and independently has to unseat the conviction.

F From the aforegoing, I find myself disposed to agree with the Republic, that the conviction is

not supportable. I hereby allow the appeal, quash conviction and set aside the sentence. It is

ordered that the appellant be set at liberty unless he otherwise has been legally held.

G Appeal allowed.

1986 TLR p6

A