athanas sebastian kapunga and 7 others vs r 2020 tzhc 4331 15 december 2020

IN THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY OF MBEYA)

AT MBEYA MISC. CRIMINAL APPLICATION NO. 181 OF 2020 (Arising from Economic Crimes Cose No. 12 of 2017 in the Resident Magistrates’ Court of Mbeya at Mbeya) ATHANAS SEBASTIAN KAPUNGA...................................................................... 1stAPPLICANT ELIZABETH WAHYDE MUNUO............................................................................ 2ndAPPLICANT SAMWEL LAZARO NHIGA................................................................................. 3rdAPPLICANT JAMES QWARDA JIROJIK.................................................................................. 4thAPPLICAN TUMAINI EXAUD MSIGWA................................................................................. 5thAPPLICAN EMILY MAGANGA LYOTELA.............................................................................. 6thAPPLICAN JUMA RASHID IDD.............................................................................................. 7thAPPLICAN MUSA ZUNGIZA ZUNGIZA.................................................................................. 8thAPPLICAN

VERSUS THE REPUBLIC.................................................................................... RESPONDENT

RULING Date of Hearing: 14/12/2020 Date of Ruling : 15/12/2020 MONGELLA, J. Through the legal representation of Mr. James Kyando, learned advocate, the applicants filed this application under section 29 (4) (d) and section 36 (1) of the Economic and Organised Crime Control Act, Cap 200 R.E.

2019. They are seeking to be granted bail pending trial of Economic Crimes Case No. 12 of 201 7, currently pending before the RMs’ Court of Mbeya at Mbeya. In a charge containing three counts, the applicants are charged with the offence of occasioning loss to a specified authority contrary to paragraph 10 (1) of the First Schedule to, and sections 57 (1) and 60 (1) and (2) of the Economic and Organised Crime Control Act, Cap 200 R.E.

2002. The first count concerns the 1st and 2nd applicants whereby they are alleged to cause Mbeya City Council pecuniary loss of Tanzanian Shillings Three Billion, Three Hundred Sixty Million, Four Hundred Twenty Three Thousands, Six Hundred Eleven (T.shs. 3,360,423,611/-). The second count concerns the 3rd, 4th, 5th, 6th, 7th, and 8th applicants whereby they are alleged to cause Mbeya City Council pecuniary loss of Tanzanian Shillings Three Hundred and Four Million, Four Hundred Seventy Thousands, Five Hundred (304,470,500/-). The third count concerns the 3rd, 4th, 5th, 6th, 7th, and 8th applicants whereby they are alleged to cause Mbeya City Council pecuniary loss of Tanzanian Shillings One Billion, One Hundred and Forty Million, Two Hundred Twenty Eight Thousand, Seven Hundred and Fifty (T.shs. 1,140,228,750/-). In on affidavit jointly filed by the 1st, 2nd, 3rd, 4th, 5th, 6th, and 8th applicants and one filed by the 7th applicant, as well as in the submission by Mr. Kyando the reasons advanced for bail application are to the effect that: First, that some of the applicants, particularly the 1st, 2nd, and 7th are of old age and having health problems whereby they require close medical attention. Mr. Kyando added that due to their medical condition, these applicants need special diet, which they cannot easily get in custody. He added that they as well do not have permanent

residents or relatives in Mbeya to care for their special diet needs while in prison. He referred the court to the medical record documents attached to the application to prove his assertion. Second, Mr. Kyando argued that the applicants are entitled to the bail as their basic right. He argued so saying that the applicants, in accordance with the law, are still presumed innocent until pronounced guilty by a court of law. On this point he urged the court to be guided by the principles settled by the Court of Appeal (Nyalali, C.J. as he then was) in the case of DPP v. Daudi Pete [1993] TLR 22 where it was stated that bail is the right of the accused granted by balancing the interest of both sides, that is, of the accused and the society. He also referred the court to the case of Tito Douglas Lyimo v. Republic [1978] LRT 55, which ruled the same. Further referring to the case of Bhagwanji Kakubhai v. Republic, Vol. 1 TLR 144, Mr. Kyando argued that the court should also consider other principles including that the grant of bail shall not prejudice the process of justice, safety/security and protection of public security. He contended that the respondent in his counter affidavit has not shown how the applicants shall interfere with investigation or justice process thus not presenting any threat to the public or justice process. Lastly, Mr. Kyando argued that the applicants are

reliable persons with reliable sureties. He said that others are retired public servants and others are still in the public service. He further contended that the applicants were initially granted bail, but the same was revoked by the Court of Appeal, during all that time, they have exerted good behavior by not jumping bail. On these grounds, he prayed for the bail application to be granted. The respondent on his part did not basically oppose the bail. In the counter affidavit and the submission made by Mr. Hebei Kihaka, learned State Attorney, he recognised the applicants’ right to bail, but challenged the reasons advanced, particularly the one related to the health status of the applicants. Mr. Kihaka challenged the medical documents presented in photocopies, which is contrary to the rules of evidence, which requires original documents to be provided in evidence. He urged the court to disregard the same for lacking evidential value. On the other hand, Mr. Kihaka submitted that, shall the court find it that the applicants are entitled to be granted the bail applied for, it should adhere to the mandatory conditions set out under the law as enshrined under section 36 (5) (a-d) of the Economic and Organised Crime Control Act. He reminded the court of the monetary value attached to the offences the applicants stand charged and urged the court to consider the same while granting

the bail. I have considered the submissions by both counsels. First of all I agree with Mr. Kihaka that the medical documents presented by the applicants on their health status cannot be admitted for being photocopies. Section 66 of the Evidence Act, Cap 6 R.E. 2019 categorically requires documentary evidence to be in original form, unless in my opinion, the provisions allowing production of secondary evidence under the law have been complied with. On these bases, the reason regarding the health status of the applicants remains unsubstantiated and thus disregarded. On the other hand however, I agree with both counsels that bail is a basic right of an accused person in a criminal trial, particularly where the offence charged is bailable. The offences under which the applicants stand charged are bailable under the law. The respondents, as argued by Mr. Kyando, did not, in essence, challenge the accused’s right to bail. They did not present any interference with the process of justice likely to be committed by the applicants if bail is granted. However, as argued by Mr. Kihaka, since the applicants face charges exceeding ten million Tanzania Shillings, the mandatory conditions set out under section 36 (5) (a-d) of the Economic and Organised Crime Control Act have to be adhered. In consideration of the requirement of the law, I grant the bail application on the following conditions:- 1. Athanas Sebastian Kapunga and Elizabeth Wahyade Munuo, the 1st and 2nd applicants, respectively, should each deposit T.shs. 840,105,902.75/- being half of the total amount of the value stated in the charge with respect to the 1st count to which they are charged with or immovable property of equal value to the amount to be deposited.

2. Athanas Sebastian Kapunga and Elizabeth Wahyade Munuo, the 1st and 2nd applicants, respectively, should each provide two sureties. Each of the sureties shall execute a bond of T.shs. 420,052,951.375/-. The sureties must be residents within the jurisdiction of the Resident Magistrates’ court of Mbeya.

3. Samwel Lazaro Nhiga, James Qwarda Jirojik, Tumaini Exaud Msigwa, Emily Maganga Lyotela, Juma Rashid Idd, and Musa Zungiza Zungiza, the 3rd, 4th, 5th, 6th, 7th, and 8th applicants, respectively, should each deposit T.shs. 120,391,604.16/- being half of the total amount of the value stated in the charge with respect to the 2nd and 3rd counts to which they are charged with or immovable property of equal value to the amount to be deposited. f\ A 4. Scimwel Lazaro Nhiga, James Qwarda Jirojik, Tumaini Exaud Msigwa, Emily Maganga Lyotela, Juma Rashid Idd, and Musa Zungiza Zungiza, the 3rd, 4th, 5th, 6th, 7th, and 8th applicants, respectively, should each provide two sureties. Each of the sureties shall execute a bond of T.shs. 60,195,802/-. The sureties must be residents within the jurisdiction of the Resident Magistrates’ court of Mbeya.

5. Where the applicants opt to deposit immovable properties in compliance with the conditions set herein, it shall suffice for them to deposit title deeds. Where the title deeds are unavailable, sufficient evidence must be provided with respect to the existence and ownership of such title deeds or properties.

6. The applicants must surrender all travel documents, if any, to the Resident Magistrate presiding over their case in the Resident Magistrates’ court of Mbeya. Where the applicants claim not to possess any travel documents, proof to that effect must be obtained from the Immigration Authority.

7. The applicants must not leave the jurisdiction of this Court Sub Registry Mbeya without written permission of the presiding Resident Magistrate at the Resident Magistrates' court of Mbeya.

8. The applicants must report in person to the presiding Resident Magistrate at the Resident Magistrates’ court of Mbeya whenever needed to do so.

9. The applicants must report to the Regional Crimes Officer of Mbeya according to a schedule to be prescribed by the Regional Crimes Officer of Mbeya 10. Verification of sureties and bond documents shall be executed by the presiding Resident Magistrate at the Resident Magistrates’ court of Mbeya. It is so ordered. Dated at Mbeya on this 16th day of December 2020 L. M. MONGELLA

JUDGE Court: Ruling delivered in Mbeya in chambers on this 16th day of December 2020 in the presence of the applicants and their advocate, Mr. James Kyando and Mr. Hebei Kihaka and Mr. Baraka Mgaya, learned State Attorneys for the respondent. L M. MONGELLA

JUDGE