R v Athumani (103 of 2005 ) [2005] TZCA 84; (01 January 2005)

IN
THE COURT OF APPEAL OF TANZANIA AT
ARUSHA

(CORAM:
LUBUVA, J.A., NSEKELA, 3.A. And KAJI,JA.A.)

CRIMINAL
APPEAL NO. 103 OF 2005

KHALID
ATHUMANI APPELLANT

VERSUS

THE
REPUBLIC RESPONDENT

(Appeal
from the Conviction of the High Court of Tanzania at Arusha)

(Msoffe,
J.)

dated
the 11^th
day of 3uly, 2003

in

Criminal
Appeal No. 48 of 2002

REASONS
FOR JUDGMENT OF THE COURT

NSEKELA,
J.A.:

When
the appeal was called on for hearing, we dismissed the appeal in its
entirety and reserved our reasons for so doing which we hereby
proceed to give.

The
appellant, Khalid s/o Athuman was charged with the offence of rape
contrary to sections 130 and 131 of the Penal Code as amended by the
Sexual Offences Special Provisions Act No. 4 of 1998. He was
convicted on his own plea of guilty and sentenced to the statutory
term of imprisonment of thirty (30) years with twelve (12) strokes
corporal punishment. His appeal to the High Court (Msoffe, J. as he
then was) was dismissed hence this appeal.

The
appellant preferred a four-ground memorandum of appeal. The thrust of
the appeal, in our view, was whether or not it was open to the
appellant to appeal against his own plea of guilty to the charge
during the trial. At the hearing of the appeal, the appellant, who
appeared in person and unrepresented, did not have anything more to
add apart from his rambling memorandum of appeal. For the respondent
Republic, Mr. Kagaigai, learned Senior State Attorney, resisted the
appeal. He briefly submitted that under section 360(1) of the
Criminal Procedure, Act, 1985 (CPA) no appeal lies where an accused
person has been convicted on his own plea of guilty save as regards
the legality of sentence meted out to him. He added that the
appellant knew the nature of the offence, did not deny it and that
the particulars of the case as presented by the prosecution were very
clear.

At
this
juncture,
we
think
it
is
desirable
to
reproduce
the
appellant's
plea
in
the
trial
court.
His
plea
was
recorded
in
the
following
words
-

"I
admit
the
charge
that
it
is
true
that
I
raped
the
complainant
Rabia
d/o Maulid without
her
consent."

The
public
prosecutor
then
narrated
the
facts
which
essentially
showed
that
the
appellant
forcibly
detained
the
complainant
Rabia
d/o
Maulid,
a
girl
aged
sixteen
(16)
years
in
his
room
from
13.12.2001
to
16.12.2001
and
unlawfully
had
sexual
intercourse
with
her.
After
the
facts
had
been
given
in
some
detail
by
the
public
prosecutor,
the
appellant
is
recorded
to
have
said
-

"I
admit
the
facts
as
true
and
correct."

whereupon
the
trial
court
proceeded
to
enter
a
plea
of
guilty
and
convicted
the
appellant
accordingly.

Section
228(2)
of
the
CPA
provides
as
follows:-

"(2)
If
the
accused
person
admits
the
truth
of
the
charge,
his
admission
shall
be
recorded
as
nearly
as
possible
in
the
words
he
uses,
and
the
magistrate
shall
convict
him
and
pass
sentence
upon
or
make
an
order
against
him,
unless
there
shall
appear
to
be
sufficient
cause
to
the
contrary."

We
do
not
entertain
any
doubts
whatsoever
that
the
summary
of
facts
as
narrated
by
the
public
prosecutor
showed
that
the
offence
stated
in
the
charge
had
been
made
out.
For
a
charge
of
rape
to
succeed,
the
prosecution
had
to
prove,
inter
alia, that
the
appellant
had
carnal
knowledge
of
his
victim
without
her
consent.
These
were
the
essential
ingredients
that
were
put
to
the
appellant
and
his
plea
of
guilty
was
unequivocal.
The
courts
are
enjoined
to
ensure
that
an
accused
person
is
convicted
on
his
own
plea
where
it
is
certain
that
he/she
really
understands
the
charge
that
has
been
laid
at
his/her
door, discloses an offence known under the law and that he/she has no
defence to it.

This
takes us to the crux of the appeal. Section 360(1) of the CPA
provides as under -

''(l)
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."

We
are alive to the fact that under certain circumstances, an appeal may
be entertained notwithstanding a plea of guilty. In the case of Rex
v
Forde
(1923)
2KB 400, His Lordship Avory J. had this to say at page 403 -

"A
plea of guilty having been recorded, this . court can only entertain
an appeal against conviction if it appears (1) that the appellant did
not appreciate the nature of the charge or did not intend to admit he
was guilty of it, or (2) that upon the admitted facts he could not in
law have been convicted of the offence charged."

Our
reading of the record shows that the public prosecutor gave a lucid
summary of the facts which established the offence with which the
appellant was charged. He pleaded guilty without equivocation. The
trial court followed the procedure that has been consistently
followed by the courts where an accused person pleads guilty to an
offence charged. The procedure was well explained by Spry V.P. in
Adan
v
Republic
(1973)
EA 445 at page 446 in the following terms-

"When
a person is charged, the charge and the particulars should be read
out to him, so far as possible in his own language, but if that is
not possible, then in a language which he can speak and understand.
The magistrate should then explain to the accused person all the
essential ingredients of the offence charged. If the accused then
admits all those essential elements, the magistrate should record
what the accused has said, as nearly as possible in his own words,
and then formally enter a plea of guilty. The magistrate should next
ask the prosecutor to state the facts of the alleged offence and,
when the statement is complete, should give the accused an
opportunity to dispute or explain the facts or to add any relevant
facts. If the accused does not agree with the statement of facts or
asserts additional facts which, if true, might raise a question as to
his guilty, the magistrate should record a change of plea to "not
guilty" and proceed to hold a trial. If the accused does not
deny the alleged facts in any material respect, the magistrate should
record a conviction and proceed to hear any further facts relevant to
sentence. The statement of facts and the accused's reply must, off
course, be recorded, (see also: Chamrungu
v
S.M.Z.
(1988
LRC (Crim.) 26 at page 29)."