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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