20161017 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM REGISTRY CRIMINAL APPLICATION NO . 114 OF 2016 :. -~· 1. ABDALLAH ABDALLA N_?AC~KA 2. KASSIM KASSIM • l\fA ' " ';;; tion filed by chamber summons :-,. pursuant (~_of the Economic and O:i;-ganized Crime ~~.... . ~~ ~ ~ ~.C 21$'and any other enabling provision of the ~ 6 law deposed by January Raphael Kam · ne, le&:,De. ocate who is the counsel hqlding instructions •: licants. The . application before the Court seeks the order of the Court that the applicants be granted bail pending trial by executing bond with or without surety or o such other conditions as the Court may specify. The 1 Respondent R~publk filed a counter affidavit depone~ by- Ms. Pauline 0 .. • ~ t,.; "' ., - , '"'-~ Fungamcz~)earnetl ... state Attorney:- c0untering tl:Ie ~contents of the ... <;, 1 .;, .,,,,,,, ~ . .., " ,:, ..., ·" .' \ applicants supporting affidavit on pertinent aspects which we will go into in this Ruling. It is important to understand the context of the matter before the Court. Fro1n the Chamber summons and the supporting affidavit and docu1nents forming part of the affidavit, that is a copy of a charge sheet, it reveals that the applicants, Abdallah Abdallah N _hwika @Chatu and Kassim Kassim Mpoma are charged with Unlawful o)· , tng in Trophies, contrary to Section 80(1) and 84(1) of the Wil No. 5 of 2009 read together with Paragraph L ) of t · section 57(1) and 60(2) Control Act, Cap 200 RE 2002. • •:?: It is alleged in the Ch t ·~· and together on diverse dates between 1 · d October 2015 at Selous National Park wi Region accepted, transported pieces of Elephant tusks valued ian Shillings Five Hundred and y dealers licence. At t .. were represented by Mr. Kambamwene d tr\, Respondent Republic were represented by Ms. ned State Attorney. The learned State Attorney for the Court to adopt the contents of the supporting affidavit stating that the offence is bailable there being no legal provision hindering the granting of bail pending trial for the applicants nor is there a certificate by the Director of Public Prosecutions praying for denial of bail for the applicants and they have· inferred this to 2 -' construe that the Respondent Republic are not objecting to the bail application. The applicants counsel argued further that the application for bail for the offence charged can only be given by the High Court and not at any other Court hence the current application and alluded to the fact that there is no other pending application for bail concerning · applicants on the offence charged. That the applicants have no_t previ, · _ly jumped bail, that they have reliable sureties if the Co ts the applicants prayers for bail and that th y +-~,(,;b~;i appear during hearing of the ~~.. ight which sh01.1ld not be denied. The Respondent Repubr ·.a,ti h oral submissions 1:~ of their objection to bai ·, n being the fact that the applicants are un~ th s and that the offence which they ar s and carry severe punishment including c er factor supporting their stance was that the _very serious because the alleged actions · diversity and in effect obliterating and end· natural heritage of the nation. I' e cases for both sides as advanced by the counsels for the s first important to address the issue whether this Court--fias JUnsd1ct10n to near tlie application. Sect10n 29(4)(dJ-·or the Economic and Organized Crime Control Act, Cap 200 which has to be read with section 29(3) of the EOCCA, Cap 200 and I have imported both provision which read as follows: 3 S. 29(3) "After having read and explained to the accused the charge or charges the magistrate shall address to him the following words or words to the like effect: "This is not your trial. If it is so decided, you will be tried later in the High Court sitting as an Economic Crimes Court, and the evidence against you will then be adduced. You will then be able to make your defence and call witnesses on your behalf'. (4) After the accused has been addressed as re magistrate shall, before ordering that he be bail is not petitioned for or is not grant~ expl his right if he wishes, to petition section the power to hear bail ap (d) in all cases where the valu in the offence charged is ten million shi tage before commencement of the trial before the Cou e High Court. Therefore in of the alleged trophies for which the a· eing valued at more than ten million nit is clear that the mandate to hear a bail Court. Therefore the jurisdiction of this lication cannot be challenged. consider is the applicants prayers and especially whether with the current charges facing the applicants bail pending trial is open to them. The Respondent Republic have objected to the application for reason that the offence which the applicants face is a serious one, involving property valued with huge sums of money and also the fact that trophies involved leads to destruction of the natural 4 resources and endangers wildlife which are critical for preservation of the enviroriment and the economy of the country. It should be understood that the offence the applicants are charged with is a bailable offence there being no legal provision prohibiting · the granting of bail pending trial. That being the ca should also be lmderstood that, in such cases, the Court applications is expected to exercised its discr consideration all important factors relating discretionary powers involved in the p r ~ of 1s a process 1n which the court i considers the relevant law, pri@i · ~. e circumstances slirrounding the case ·· ~. right decision •that guarantees a proper an ·, f justice. .="~ In the case o . R, 1 TLR 144 the test applied in suchju , the granting of the application will :~f justice, good order and the keeping of publi ing being that interests of justice require trial, that the applicants (accused person's) ustifiably denied and that if released on bail the mp bail or interfere with the police investigations or e other hand interests of State being that public peace and good order require that while on bail the accused person will. not commit other offences, cause terror or breach peace and tranquility. Deciding on whether to grant or refuse bail to an accused person is therefore an exercise of balancing and deciding betwe.en two competing 5 '' •~- claims. The individual right to personal freedom on one hand and the need to protect the interests of the society at large within legal, social, econon1ic and political environment of the society on the other. There are other factors to be considered is such a process but most of the time they depend on the particular case and circumstances but the common one include the seriousness of the offence, the severity of punishment involved, how reliable is the accused and his or he · .' reties, his or her residence or domicile, how long has he/she b_ the nature of evidence in support of the charge Where the application for bail i certain allegations or facts, such all~~ substan.tiated either by fili1~Jg~ ~:@·. •· cing evidence.)t is ~ for the side opposing (:.:,~ppl~catio (•;;,»µ.J..LU. time the Respondent O Republic to ~urt4. . · :.., application is granted the interests of j · ·e question before me is therefore whether i ;1_·~=.•=L~J:""·=".I ere is concrete evidence for me to 1s granted public interests will be reasons for denying the applicant his con . Looking t in reply by the Respondent Republic it is mere allegatio tantiated by anything except the fact that there is no doubt the offence facing the applicants is grave and involving a huge sum of money, and also the fact that it involves trophies and therefore challenging wildlife existence, which is also a serious issue. The fact is that the Respondent Republic has failed to disprove the assertion by the applicants that if given bail, they will be available during hearing of the 6 case, and that they can provide reliable sureties and ready to comply with any orders for which the Court may direct. This Court having heard and considered the submissions by counsels for both parties on the issue, first and foremost finds that this Court has jurisdiction to entertain this application in view of the charges the applicant faces as alluded hereinbefore. It suffices· various cases, a decision to grant or refuse bail depen · n many factors. They include the gravity of the offence char law can prohibit grant of bail. The open against the offence for which the objection raised not providing the applicants. Bail is therefore,, . ·. The issue for considera is the conditions or terms. The Court d by the seriousness of the availability of the applicants for attendance s set. The conditions are fixed by , discretion or by the law with a view to ,:;rson appears in Court for his trial. "The guidz have to be reasonable, even rt having already stated hereinbefore in this Ruling, that bail has been granted to the applicants, Abdallah Abdallah Ngachwika @Chatu and Kassim Kassim Mpoma. The bail granted is subject to the conditions hereunder: 1. Each applicant to execute a bond of Tshs. 130,000,000.0 together ~ith filing a Title deed to immovable property of the equivalent amount. 7 2. Each applicant will be required to provide two reliable sureties who will be required to execute a bond of Tshs. 30,000,000 /- each. One of the two sureties 1nust be employed in the service of the Government of the United Republic of Tanzania or a Public Institution. 3. The applicants are restricted from moving out of the jurisdiction of the Resident lVlagistrate's Court Dar es Salaam without permission of the Resident Magistrate Incharge Dar es Salaam. 4. Each applicant to surrender their pas documents at the Kisutu RMs Court. 5. Verification of the sureties and bond tt·· ume the Re:~,i~en:t:: -Ma,gistrate Incharge 0 ,:::::-/ ,J ,g_ ! 0 ;:.:'.:-, ./-,,. 0 ' - ·:;;::._ ~.,, if.' ;, I!{:)// l~i ij r\ \ \.~ \ \~:.',,. ' I '\•S,, \, '»~,t,,"···. ··". '"'"' ,' _____ ~ _/_/ .;-...__ @ '---. ..::::;::- 8