Laurence Mpinga vs The Republic, [1983] TLR 166


Samatta, J.: This appeal reminds me of the question which Lord Goddard, C.J., posed in R.v. London Quarter Sessions [1957] 3 All E.R. 28 at p. 31: “How can a person who pleads guilty deliberately be aggrieved by a conviction?.” 

The appellant in the case now before me, Laurence Mpinga, was convicted, upon “his own plea of guilty”, of robbery, contrary to s. 285 of the Penal Code, by the Primary Court of Chikundi. He was alleged to have robbed a school-girl, aged 15, of Shs. 20/=. When the charge was read over and explained to him his plea was: 

It is true I robbed her shs 20/= by using violence.

This was entered by the court as a plea of guilty to the charge. In accordance with the procedure outlined by Mahon, J. (as he then was) in Regina v Waziri s/o Musa, 2 T.L.R. (R) 30, at p.31, the facts of the case were then outlined by the complainant, Fatu Hashimu. These revealed that the appellant had pounced upon the young girl and dragged her for some distance before taking away, by force, her currency note of twenty shillings. When the appellant was asked to say whether or not the given outline of facts was correct he answered as follows:

What the complainant has said is nothing but the truth. Upon the strength of his plea and this reply the court convicted the appellant as charged, i.e. of robbery, and it then proceeded to sentence him, under s.5(b) of the Minimum Sentences Act, 1972 to a term of seven years’ imprisonment. The appellant appealed against the (whole) decision to the District Court of Masasi district, without any success. He still says that he should not have been convicted; hence the present appeal. In his petition of appeal the appellant asserts that the complainant (i.e. the young girl) is his close relative and that he has been her guardian since she was aged two. 

According to the appellant, the young girl was a truant and he took away the shs. 20/= from her with a view of correcting her behaviour and forcing her to go back to school.

Section 16 of the Magistrates’ Courts Act, 1963, provides for appeals from Primary Courts to District Courts but subsection (2) (a) thereof lays down that: 

No appeal shall be allowed in any case of an accused person convicted on his own plea of A guilty, except against sentence or an order for the payment of compensation.

If the appellant had in fact and in law pleaded guilty to the charge of robbery, then he  could not be heard in the District Court to complain against his conviction. I say in fact and in law because, as I apprehend the law, an accused person who has been convicted by any court of an offence “on his own plea of guilty” may in certain circumstances appeal against the conviction to a higher court. Such an accused person may challenge the conviction on any of the following grounds:

   1.   that, even taking into consideration the admitted facts, his plea was imperfect, ambiguous or unfinished and, for that reason, the lower court erred in law in treating it as a plea of guilty;

   2.   that he pleaded guilty as a result of mistake or misapprehension;

   3.   that the charge laid at his door disclosed no offence known to law; and

   4.   that upon the admitted facts he could not in law have been convicted of the offence charged.

Although he does not expressly say so, the appellant in the instant case suggests that he  pleaded guilty to the charge of robbery as a result of mistake or misapprehension on his part. It is a correct proposition of law, of course, the validity of which it is neither possible nor safe to dispute, that there cannot be an offence of robbery unless theft has taken place, and that for theft to be proved it must be demonstrated or unequivocally G admitted that there was a fraudulent taking or conversion – a tortious taking or conversion being insufficient. 

It is also a correct proposition of law, I think, to say that the defence of bona fide claim of right, provided for in s.9 of the Penal Code, applies to the offence of robbery, too. It is not necessary, to establish a bona fide claim of right in  the case of robbery, for the accused to satisfy the court that he had the honest belief that he had the right to take the property in the way in which he did. If, as the appellant now asserts, he used force against Fatu with the intention of correcting her behaviour and not for the purpose of stealing, neither lawyer nor a layman would, I think, describe I that conduct as amounting to stealing. But is that what happened? I think not.

 I cannot see how, if the appellant’s assertion were true, he, as sane person and an adult, could possibly have spoken to the court under a misapprehension as to the nature and gravity of the accusation preferred against him. In my settled view, the appellant pleaded, and intended to plead, guilty to the charge. 

What, I ask, was the difficulty in pointing out to the Primary Court, a tribunal whose atmosphere is, comparatively speaking, fairly informal and simple, that he did not intend to steal the shs. 20/=? I get no answer. The appeal against conviction is plainly a shot in the dark; it is probably a product of an advice from a barefoot “lawyer”, whom the appellant must have met in prison. In my view the District Court erred in law in entertaining the appellant’s appeal against conviction. 

That appeal was incompetent in law, and should, therefore, have been struck out.

The appeal against sentence is competent in law, and I proceed, therefore, to consider it. D Mr. Sengwaji, counsel for the Republic, having drawn my attention to two facts: (1) that the appellant is a first offender, and (2) that the money which was obtained in the course of the perpetration of the robbery did not exceed one hundred shillings, urged me to say that the Primary Court could, and should, have held that this was a proper case in which to invoke the merciful provisions of s. 6 of the Minimum Sentences Act, 1972, and should have proceeded to deal with the appellant as if the Act had not been enacted. With respect, I am inclined to think that there is some merit in the argument. Bearing in mind, among other things, that the appellant had pleaded guilty, I think this is a  case where justice ought to have been tempered with mercy. This is what I propose now to do. 

Taking into consideration all the competing factors, I think a sentence of four years’ imprisonment would have adequately reflected the society’s revulsion against the appellant’s  antisocial conduct. The sentence of seven years’ imprisonment is reduced accordingly. 

I have sufficiently demonstrated, I hope, why the purported appeal against conviction must be, and is, struck out, and why the appeal against sentences is allowed to the extent herein indicated.

 Order accordingly.