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OIN THE HIGH COURT OF TANZANIA

AT OAR ESSALAAM

CRIMINAL APPEAL NO. 76 OF 2007


(Originating from Kisutu Resident Magistrate Court
Criminal Case No. 664/2007)

MARIAMU MASHAURI. . . . . . . . . . . . ..

APPELLANTY

VERSUS
THE REPUBLIC

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

Purposes of Obtaining Tanzania Passport contrary to section 19


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

second Count of Unlawfully Present in the United Republic of


Tanzania (sic) contrary

to section 31 (1) and

Immigration Act 4 (a) 7 of 1995.

{2)of the

At the

hearing of the appeal the appellant Mariam

Mashauri was represented


and Evod Mmanda.

by two advocates Mpoki Mpale

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.


behalf of the appellant

Mr. Mmanda on

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
offence.

by the prosecution did not disclose an

He concluded that facts presented simply repeated

what was contained in the particulars of the charge.

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.

(ii)

The prosecution should then


immediately

state the facts and

the accused should be given the


opportunity to dispute or explain
the facts or to add any relevant
facts.

In the case of Mohamed Yusuf Arap Abdullah Vs R 1957


EA 551 it was also held that:-

(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

. sImp
. Ie h urt
causmg

."

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


Obtaining Tanzanian passport {sic}

for the purpose of

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.

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

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

mentioned.

said

false declaration

should

have

been

Crucially the alleged false declaration should

have been tendered and received as part of the evidence


collected against the appellant.

The said declaration was

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
Solum Shaban; Vs (J 985) TLR71 were iswas stated that:-

Where the Legislature has given

an

of

option

imprisonment,
imposing

fine

or

the court, when


sentence,

must

ascertain that a sentence

of a

fine should first be imposed and


in default of payment of such a
fine,

then

sentence

of

imprisonment can be given.

I agree with the above


applicant

authority.

Regrettably the

was never given an option of a fine.

I have

considered this case, 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.

After the appellant had exhausted her arguments I called


on the learned State Attorney, Angaza Mwipopo who on
behalf of the Director of Public Prosecutions represented the
Republic.
appellants

The learned State Attorney did not support the


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 falls to
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.
possession of

valid

Immigration Department
established.

The appellant

Tanzania Passport issued by


unless and

is in
the

until the contrary

is

release of the appellant after hearing her appeal. The above

\J1.~j

G.P. Shaidi