MariamuMashauriVsRepublic 76 of 2007

8/16/2019 MariamuMashauriVsRepublic 76 of 2007

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OIN THE HIGH COURT OF TANZANIA

A T OA R ES SA L A A M

C R IM IN A L A P P E A L NO . 7 6 O F 2 00 7

(Originating from Kisutu Resident Magistrate Court

Criminal Case No. 664/2007)

M A RIA M U M A SHA URI. . . . . . . . . . . . .. A PPEL L A NTY

VERSUS

THE REPUB L IC RESPONOENTS

Date of last Order: 6/8/2007

Date of Judgement:

SHAIOI, J .

Thisis an appeal by one MARIAM MASHAURIagainst her

conviction and sentence for Making a Fake declaration for

Purposesof Obtaining Tanzania Passport contrary to section 19

(2) (a) of the Tanzania Passport Act No. 20 of 2002 and a

second Count of Unlawfully Present in the United Republic of

Tanzania (sic) contrary to section 31 (1) and {2)of the

Immigration Act 4 (a) 7 of 1995.


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At the hearing of the appeal the appellant Mariam

Mashauri was represented by two advocates Mpoki Mpale

and Evod Mmanda. The Republic was represented b y

Mwipopo learned State Attorney. The appellant had filed five

grounds of appeal but at the hearing of the appeal the

appellants advocate informed the court that they would

consolidate the first three grounds of appeal into one and the

other two grounds into the second ground so only two grounds

of appeal were argued.

The first ground is against conviction. Mr. Mmanda on

behalf of the appellant argued forcefully that the court

convicted the appellant on an equivocal plea of guilty. He

stated that the charge was so ambiguous that the appellant

didn't know what she was charged for. He also told the court

that facts adduced by the prosecution did not disclose an

offence. He concluded that facts presented simply repeated

what was contained in the particulars of the charge.


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In support of the above submissionsthe case of Adam Vs

Republic (1993) E.A. 445 was quoted to the court. In that case

the court of Appeal held among other things that:

(i) The charge and all the

essential ingredients

of the offence should

be explained to be the

accused in his language or in a

language he understands.

(i i) Th e p ros ec uti on s ho ul d t hen

immediately state the facts and

the accused should be given the

opportunity to dispute o r explain

the facts or to add any relevant

facts.

In the case of Mohamed Yusuf Arap Abdullah Vs R 1957

EA551 it was also held that:-


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(i) Where a court accepts a plea

of guilty from an accused who

is not legally represented all the

ingredients of the offence

charged should be carefully

ingredients are fully understood

(ii) The appellant had pleaded

Guilty to voluntarily causing

previous hurt

the nature of the offence charged

and the proper charge to which the

to plead was a charge of voluntarily

. . I h rt "causmg sImp e u .


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In this judgement I shall reproduce the charge and the

facts read to the appellant in order to get a clearer picture of

what happened in the trial court.

1st Court:

OFFENCE, SECTION OF THE LAW.

Makes {sic} a false declaration for the purpose of

Obtaining Tanzanian passport {sic} cis 19 (2) of Tanzania

PassportAct No. 20 of 2002.

PARTICULARS OF OFFENCE

The accused person is charged that on 19/4/2007 at

Kinondoni District in Dar es Salaam Region was found to have

made a false declaration for purposes (sic) of obtaining a

Tanzania Passport No. A. 02 69993issued at Dar es Salaam on

4/5/2005.


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The second count relates to the appellant being

Unlawfully in Tanzania in Violation of the Provisionsof section 31

(1) and (2) of the Immigration Act NO.7 of 1995.

As can be gleaned from he first count the appellant is in

possession of a valid Tanzania Passport issued by the

Immigration Department in Dar es Salaam on 4th May, 2005.

However at the sametime he is charged of making a False

Declaration for purposes of obtaining a Tanzanian passport No.

A. 0269993on 19th April, 2007.

The question that must be answered is that if the

appellant already had a valid Tanzania passport since 4th May

2005, why make a False Declaration in order to obtain the

same passport two years later? (i.e. 19th April, 2007). In my view

the charge was fatally defective and or ambiguous and

apparently it was not properly and carefully explained to the

appellant. It appears to me the charge does not disclose the


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offence the prosecution was attempting to charge the

complainant with.

When the Republic was given an opportunity to state the

facts of the case, they essentiallyrepeated what was stated in

the charge. Taking into consideration the cases I have above

quoted, the prosecution was supposed to have given a full

account of the facts of the case and the same explained

clearly to the appellant. This is my evaluation of the

proceedings was not done satisfactorily.

The chare states that the complaintnant was found

making a false declaration for purposes of obtaining Tanzania

Passport No. 0269993. I would have expected that at least

when giving the facts the person who found the appellant

making the said false declaration should have been

mentioned. Crucially the alleged false declaration should

have been tendered and received as part of the evidence

collected against the appellant. The said declaration was


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never tendered and the person who found the appellant

making the false declaration was never mentioned. Had the

false declaration been tendered the same would have been

evaluated by the trial court and even on appeal regarding its

falsity or otherwise. What was stated in court were mere words

not supported by any document. In cases where the

prosecution alleges the making of a false declaration the same

must be tendered to the court for evaluation as to its falsity or

otherwise. Mere words in such cases will not do.

The second ground is with respect to sentence handed

down to the appellant. Thisisan offence that carries an option

of a fine. It has been stated times out of number that where an

offence carries an option of a fine, courts should first consider

imposing a fine unless there are extreme or aggravating

circumstances calling for imposition of a custodial sentence.

Advocate for the appellant quoted to the court the case of

So lu m S hab an ; Vs (J 985) TL R71 were iswas stated that:-


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Where the Legislature has given

an option of a fine or

imprisonment, the court, when

imposing a sentence, must

ascertain that a sentence of a

fine should first be imposed and

in default of payment of such a

fine, then a sentence of

imprisonment can be given.

I agree with the above authority. Regrettably the

applicant was never given an option of a fine. I have

considered thiscase, even if the appellant had committed this

offence I see no extreme or aggravating circumstances

justifying imposition of a custodial sentence of 3 years

imprisonment without giving the appellant the option of a fine

first.


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After the appellant had exhausted her arguments I called

on the learned State Attorney, Angaza Mwipopo who on

behalf of the Director of Public Prosecutionsrepresented the

Republic. The learned State Attorney did not support the

appellants conviction because the charge was fatally

defective. He also did not support the sentence and in hisview

imposition of a custodial sentence where the law gives an

option of a fine should only he resorted to where an accused is

a second offender. He also told the court that in view of the

incurable defect in the firstcount the second count also fallsto

the ground.

I agree with the learned State Attorney on all that he said.

The second count can not stand in view of the ambiguity and

incurable defects in the first count. The appellant is in

possession of a valid Tanzania Passport issued by the

Immigration Department unless and until the contrary is

established.


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release of the appellant after hearing her appeal. The above

~ \J1.~jG.P. Shaidi I

MariamuMashauriVsRepublic 76 of 2007

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