canuthe hipolithe matsindiko 6 others vs republic 2023 tzhc 20629 1 september 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUMBAWANGA DISTRICT REGISTRY AT SUMBAWANGA CONSOLIDATED MISCELLANEOUS CRIMINAL APPLICATION NO. 11,12,13 AND 14 OF 2023 (Originating from Economic Case No, 5 of 2023 in Resident Magistrate Court of Katavi at Mpanda) CANUTHE HIPOLITHE MATSINDIKO st APPLICANT 1 MARA S/O SAMSON OLUMUOMB ........................................ ... 2"D APPLICANT MICHAEL MATHEW KATANGA................ ................ 3R?;APPLICANT TUMAINI S/O RICHARD MISESE @ RICHARD S/O MSESE ...?;.4THAPPLICANT EMMANUEL S/O DAMAS SALANGA ........ th APPLICANT .... 5 MISAMI S/O ANDREW @ MASHAURI ................'v........^........ th APPLICANT 6 LAURENT S/O WILLIAM @ SUNGA.......7.........;^.................... th APPLICANT 7 VERSUS ' ' THE REPUBLIC................. ...................... ........RESPONDENT 31/08/2023 &. 01/09/2023 < {J RULING '•* t .i-11 ?;< MWENEMPAZI, J: '-;X' . ; :C*•• \zt- . • - •- • >r'- • > •i: The applicants severally brought and filed applications for bail as follows. The 1st and 2nd Applicant herein filed Miscellaneous Criminal Application No. 11 of 2023, 3rd Applicant filed Miscellaneous Criminal Application No. 12 of 2023, fourth and fifth Applicant filed Miscellaneous Criminal Application No. 13 of 2023 and again the third applicant filed another application No. 14 of 2023 together with the sixth and seventh applicant. 1 In all applications the applicants are applying for bail under the provisions of section 29(4) (d) and 36(2) of the Economic and Organized Crime Control Act, [Cap 200 R.E2022], It would seem the third applicant instructed two advocated at different times or may be someone decided to do the instruction for him hence duplication. Since in both applications the prayers are for bail 'application,provisions of law and the factual contents on which the application is relyinc। are similar, I can safely and without prejudice to the .applicant at this stage strike out w<! the Miscellaneous Application No. 12-of 2023 to do avvay with duplications. Also, it is worthy noting that all applications,, are made under certificate of urgency on the,:reasons that so far the applicants, in law, are presumed innocent but thgy have, been restrained in the prison and that, them being released on bail, it Will ,reduce.congestions in the remand prisons. ’S- The affidavits accompanying the applications show that the applicants are public servants ; and are alleged to have caused loss of Tshs. 1,232,408,689/= to Mpimbwe District Council, the specified authority. The offences with which they are charged with are bailable and they have reliable sureties and they are ready to furnish security subject to the law applicable 2 as of now. The applicants also are ready to abide by bail conditions that this court may prescribe and consider to be proper. At the hearing of the application, learned Advocates Mathias Budodi, Sekela Amulike, Sweetbert Nkupiio and Ibrahim Athuman appeared for the applicants. On behalf of all of them Mr. Budodi learned, advocate made a submission. The counsel at the forefront' ' successfully prayed for consolidation of the applications as listed above, " Ay y- - vy, In the submission the counsel Mr. Mathias Budodi; Advocate reiterated the contents of the applications after he ,,hady prayed for the certificate of |i ,.A. urgency, Chamber Summons and affidavits' be adopted, he also submitted that the affidavits sufficiently contain the grounds upon which the applicants rely to seek fdr order.granting them bail. He insisted that the applicants have reliable sureties who would ensure the attendance of applicants in court as and when their attendance will be required. He invited this court to consider that granting bail to the applicant will be adhering to the provisions of Article 13(6)(b) and 15(1) & (2) of the Constitution of the United Republic of Tanzania of 1977, which provisions 3 emphasis on the presumptions of innocence of the accused persons until when they will be found guilty and convicted and right to freedom and to live as free person. The counsel cited the case of Nassib Mmbaga & 2 others Vs. Republic Wise. Criminal Application No. 187 of 2021, High Court of Tanzania % at Dar es salaam (unreported) at pagew^last pafagraph)^where honourable Mruma J, held that: - tKl r,i ’'-fete. "Article 13(6)(b) anti 15(1) and(2)ofttieConstitution are v.'£. 'W. ''^5' explicit anti are to the effect that, unless there is some compelling .. reason an accused person (be a citizen or foreigner), has to be released ph bail as a matter of right, W pending the.hearing and determination of his/her case." He concluded, by.prayingthat this Court grants an application and the prayer was accompanied with an invitation to consider a sharing principle which was also dealt with in the referred Case herein above. The Republic was being served by Ms. Godliver Shiyp, Mathias Joseph and Ms. Atupele Makoga, learned State Attorneys. Ms. Godliver Shiyo, learned State Attorney is the one who made a submission. She stated that they have 4 heard and understood the submission and based on the content, they have no objection to the grant of bail as bail is a constitutional right under Article 13(6)(b) of the Constitution of the United Republic of Tanzania of 1977. She also prayed that the bail conditions should consider the gravity of the offence and severity of the sentence in case the accused will >be convicted she also stressed that even in the cited case by the counsel foPthe applicants, at page 10, the Honourable Judge did consider these factors. The learned state attorney also invited and or.reminded this Court to consider also taking into account theprovisions of-section 36(5) (a) of the Economic and Organized Crime Control Act, [Cap-200 R.E 2022], I have heard th^submission apd do agree with counsels for the applicants as well as the Respondents that bail is a constitutional right and a person alleged to have committed an offence is presumed innocent until found guilty and convicted by the Court. As the constitution also provides for the right to freedom and to live as a free person (under art. 15(1) bail is procedure to protect that freedom to the alleged offender so that he enters appearance in Court when required until determination of the charges facing the person in question, in this case the applicants. 5 In the case of Nasib Mmbaga and two Others Vs, Republic (supra) it was held that: "The purpose of bail therefore is simply to ensure that the accused will appear for trial and all pretrial hearings. It is not a fine. Bail as a constitutional right, therefore allows the arrested person to remain free untiTconvictedpf an offence and at the same time ensure his or herfreturn to Court". *4 There are guidelines issued for Judges and Magistrates to consider when considering the application for bail.' In the referred case, the applicants have similar charges,as.inthis case. The second count the applicants in this case are being charged with the offence occasioning loss to a specified authority. The counsel for respondent invited this Court to consider the gravity of offence and severity- of the sentence. On the factors the honorable Judge in the referred case above observed that: - "...there is no gainsaying that the offence of occasioning loss to a specified authority under the Economic and Organized Crimes Control Act, is one of the most serious 6 offences in the land and that in terms of section 60(2) thereof it entails a minimum sentence of not less than twenty (20) years and a maximum of 30 years. Thus, given the seriousness of the charge and possible outcome of a conviction, the temptation to jump baiiifreleased on bond should be a key consideration". Also, the counsel for respondent urged that.this Court should consider the W w provisions of sections of section 36(5)d(a),of tfe,Econ<gmic and Organized Crimes Control Act, [Cap 200 R.E 2022]. The section provides that: - .... ^1.. C-u --sr "Where th^ouiif^ecid^fg^driiibgn accused person to bail, it shall impose the following conditions on the bail namely:, Syi;: .?.i. '''fljT’' (a)' Where .the offence with which the person is charged '"'fe involves "actual money' or property whose value exceeds ten million shillings unless that person deposits cash or other property equivalent to half the amount or value of actual money or property involved and the rest is secured by execution of bond". 7 Thus, the provisions requires that a condition for deposit of half the amount of money the subject of the case to be deposited in court or a property of the equivalent value. The counsel for the applicants prayed that a sharing principle be taken into account. He referred to page 13 of the cited case above. In the said case, X?-. >■ Nassib Mmbagga and three others Vs. Republic (Supra) at page 13 it is observed: - ~i;. W' "The principle of sharing cited by Mr/ Ka tuga, is on ail "t " ""MB fours, with the Bai! Guidelines issued, by the Judiciary of Tanzania on ICF3 September, 2020. Paragraph 3.6.3 . Hi provides to the effect that where the law requires the accused to deposit half of the value or amount involved in H the 'charge and there are more than one accusedpersons, That amount will be shared among them." Having said asThave, I now order that all the seven accused persons are admitted to bail and since the charge also involves money to the sum of one billion two hundred thirty-two million four hundred eighty nine shilling only, the applicant will share the deposit the half of that money as provided. The conditions are as follows: - 1. Each accused person must have two reliable sureties working in the Government or any other reputable organization within the Country. 2. Each accused person must deposit in Court<;cash money Tshs. 88,029,193/= or a tittle deed of the immovable property of the equivalent value or more located within the United Republic of Tanzania preferably within the jurisdiction of the .Court. 3. Each accused person to sign with the Court (Resident Magistrate Court of Katavi at Mpanda) a bail bond of Tanzahia Shillings one billion two hundred thirty-two million four hundred eight thousand six hundred eighty - nine shillings only) not cash. 4. Applicants restricted not to travel outside the jurisdiction of this Court / c • • y; ’ ■ i/. ’< £; r-, 1!; - 7 •, -i. without the written permit of the Deputy Registrar of the High Court or as Directed by him. 5. All applicants to surrender their travel documents or their passports (if any) to the Court provided that in the event they obtain leave to this Court for their travel abroad upon an order of the Court shall be given the said passports for the purpose. 9 6. Verification of the compliance to the conditions to be conducted by the Deputy Registrar of the High Court who may delegate to the Resident Magistrate in charge of the Resident Magistrate's court of Katavi. It is ordered accordingly. 10