Joseph Katepa Kalenda vs Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA CRIMINAL APPEAL NO. 27376 OF 2024 (Originating from Economic Case No. 4/2022 at District Court of Sumbawanga at Sumbawanga) JOSEPH KATEPA KALENDA......................................................... APPELLANT VERSUS THE REPUBLIC............................................................................ RESPONDENT JUDGMENT MWENEMPAZI, J; The appellant, being the first accused, and three other persons, namely: Peter s/o Simbeya Kituta who was the 2nd accused person, Augustino s/o Gaspary Msinikwa, who was the 3rd accused person and Mhina s/o Salim Mbwambo who was the 4th accused person, were arraigned in the District Court of Sumbawanga, herein referred to as the trial court, with charges comprised of five counts of offences in Economic Case No. 4 of 2023. The counts of offences were: 1st count for the 1st, 2nd and 3rd accused persons was Abuseofpositioncontrarytosection31ofthePreventionand 1 Combating of Corruption Act, Cap. 329,R.E.2019 read together with Paragraph 21 of the 1st Schedule to, section 57(1) and 60(2) of the Economic and Organized Crime Control Act, Cap. 200 R.E.2019. The second count for the 4th accused person was Forgerycontrarytosection 333.335(a), (b) and (c) and 337 of the Penal Code, Cap. 16 R.E.2019. The 3rd Count for the 4th accused person was Forgery contrary to section 333,335(a), (b) and (c) and 337 of the Penal Code, Cap. 16 R.E.2019. The fourth count for the 4th accused person: Uttering false Documents contrary to section 342 of the Penal code, Cap. 16 R.E.2019. the fifth count for the 4th accused person was Uttering false Documents contrary to section 342 of the Penal code, Cap. 16 R.E.2019. The particulars of offence are that in the first count, Joseph s/o Katepa Kalenda, Peter s/o Simbeya Kituta, and Augustino S/O Gaspary Msinikwa between 28th day of December, 2021 and 31st day of March, 22 within Sumbawanga Municipality in Rukwa Region being secretaries and chairperson respectively of Procurement Committee for Momoka Secondary School Building Project appointed by the District Executive Director of Sumbawanga Municipality in Rukwa Region intentionally abused their respective positions by failure to follow procurement competition tender 2 procedure in violation of Regulations 184(1) (3),(5) and 203(2) of Public Procurement Regulations, 2013, G.N. No. 446 of 2013 and Paragraph 22.3 and 22.4 of Guideline for Carrying Out Works Under Force Account, 2020 for purpose of providing undue advantage to MACWAYS GENERAL SUPPLY win the said tender. In the second count, it was alleged that the fourth accused between 28th day of December, 2021 and 31st day of March, 2022, within Sumbawanga Municipality in Rukwa Region being a shop attendant of Macways General Supply shop, with intent to defraud Procurement Committee of Momoka Secondary School Building Project forged a document titled “Mini Competition Quotation Form” purporting to show that the price of items sold by Nyabuganji Enterprises were high than the items sold by Mac Ways General Supply, therefore there was a fair competition between the said MACWAYS GENERAL SUPPLY, NYABUGANJI ENTERPRISES and KAFULUSU ENTERPRISES LTD for the supply of building materials for construction of Momoka Secondary School, the fact he knew to be false. In the third count, it was alleged that the fourth accused between 28th day of December, 2021 and 31st day of March, 2022, within Sumbawanga Municipality in Rukwa Region being a shop attendant of Macways General 3 Supply Shop, with intent to defraud Procurement Committee of Momoka Secondary School Building Project forged a document titled “Mini Competition Quotation Form” purporting to show that the price of items sold by Kafulusu Enterprises Ltd were high than the items sold by MacWays General Supply, therefore there was a fair competition between the said MACWAYS GENERAL SUPPLY, NYABUGANJI ENTERPRISES and KAFULUSU ENTERPRISES LTD for the^supply of building materials for construction of Momoka Secondary School, the fact he knew to be false. In the fourth count, the particulars were that the fourth accused person between 28th day of December, 2021 and 31st day of March, 2022, within Sumbawanga Municipality in Rukwa Region being a shop attendant of MACWAYS GENERAL SUPPLY shop knowingly and fraudulently uttered a false document namely Mini Competition Quotation Form to Procurement Committee of Momoka Secondary School Building Project to show that the price of items sold by Nyabuganji Enterprises were higher than the items sold by MACWAYS GENERAL SUPPLY so as to win a procurement tender competition, a fact he knew to be false. In the fifth count, the particulars were that the fourth accused person between 28th day of December, 2021 and 31st day of March, 2022, within 4 Sumbawanga Municipality in Rukwa Region being a shop attendant of Macways General Supply shop knowingly and fraudulently uttered a false document namely Mini Competition Quotation Form to Procurement Committee of Momoka Secondary School Building Project to show that the price of items sold by KAFULUSU ENTERPRISES LTD were higher thatn the items sold by MACWAYS GENERAL SUPPLY so as to win a procurement tender competition a fact he knew to be false. When the charge was read over to the accused persons, they all distanced themselves from the allegations levelled against them. The prosecution had to proceed with the preliminary hearing under section 35 of the Economic and Organized Crime Control Act, Cap. 200 R.E.2019. The facts of the case which were summarized by the prosecution were as hereunder; On the 30th December,2021 the first accused person was appointed as a Procurement Officer, Secretary of the Procurement Committee for the construction of Momoka Secondary School by letter dated 30th December, 2021 with reference No. SMC/C.20/26/07/67. On the 5th January, 2022 the 2nd accused and the 3rd accused were appointed as secretary and chairman of the procurement committee to the construction of Momoka Secondary School through letters dated 5th January, 2022 with reference No. 5 SMC/E.70/44 for the 2nd accused and reference No. SMC/E.70/37 for the 3rd accused person respectively. According to the facts, it is alleged that between 28th December, 2021 and 30th March, 2022, 1st, 2nd and 3rd accused person did give favor to Macways General Supply. It was intended to win tender for the construction of Momoka Secondary School. As for the 4th accused person, between the same dates did sign a document, namely Mini Competition Quotation Form. The document shows that the items sold by Nyabuganji Enterprises had higher price than the items sold by the Macways General Supply. It is alleged that the document was forged. The document signed by the fourth accused person was a mini competition form. That document shows the items sold by KAFULUSU had high price than that of Macways General Supply. It was also forged. That document which had a Mini Competition Quotation Form was submitted to the Procurement Committee of Momoka Secondary School Building Project. It is also alleged that 1st accused person recorded a cautioned statement voluntarily where he confessed that he did not follow the procurement competition tender procedure. That was also the situation for 2nd and 3rd accused person who recorded their cautioned statement on the 9th 6 February, 2023 and they did confess not to have followed the procurement procedure. The facts above were read over and explained to the accused persons who denied that they committed the offences. Hence the prosecution called fifteen (15) witnesses who testified for the prosecution and the defendant testified themselves. There are also exhibits which were tendered. Based on the evidence, the trial court made a decision convicting the appellant and another one who was the fourth accused in the trial court. According to the decision of the trial court, the issues for determination were whether the first, second and third accused person did abuse their position; whether the fourth accused person did forge the documents and utter the same to the procurement committee for Momoka Secondary School Building project. In resolving the issues, the Honorable trial magistrate referred to the provisions of section 31 of the Prevention and Combating of Corruption Act, Cap. 329 R.E. 2019 which provides as follows: “Anypersonwhointentionalyabuseshispositioninthe performanceorfailuretoperformanact,inviolationof 7 law,inthedischargeofhisfunctionsoruseofposition for the purpose of obtaining an undue advantage for himself or for another person or entity, commits an offenceandshalbeliableonconvictiontoafinenot exceeding five million shillings or to imprisonment for a term not exceeding three years or to both. ” The trial magistrate held that three ingredients must be proved in order to convict the accused under the provisions. One, the accused person must have a position which is entrusts him with power; two, he must have acted or omitted to act in contravention of the law; three, the acts must have been done for his own advantage or for the advantage of another person(s). Applying the ingredients to the facts of the case against the accused persons, particularly, the first, second and third accused person, he made findings that the prosecution has proved that the first accused person, the appellant herein, has the power, as secretary of the procurement committee for the construction of Momoka Secondary School. That, by his position, he was duty bound to make sure that, in obtaining the supplier who will supply materials for the construction of Momoka Secondary School, he will ensure that competition has to be maintained in 8 accordance with the Guidelines for work under force account, the duty which he has failed to discharge, for the advantage of Macways General Supply. He concluded that the first accused person did abuse the position. The trial Magistrate also held that the prosecution has failed to prove charges against the second and third accused person who were said to be chairman and secretary of the procurement committee for Momoka Secondary School Building Project respectively. Since they had no power, they cannot abuse power which they don’t have. They were thus acquitted. As to the fourth accused person, the Honorable trial Magistrate made a finding that the evidence adduced by prosecution witnesses together with the tendered documentary exhibits on record, has linked the fourth accused person with the offence of forgery to wit, forgery of the document called Mini-Competition Quotation Form, showing that, the items sold by Nyabuganji and Kafulusi, had higher price than of Macways General Supply. That the evidence has also linked the accused person with the third count of uttering a forged document to the procurement committee. The first accused, appellant herein was thus convicted with the first count of offence and the fourth accused person was found guilty and convicted with the second count and fourth count of offence. 9 The trial court therefore sentenced the convicts as follows; the first accused was sentenced to serve a term of twenty years imprisonment in jail. The fourth accused/convict was sentenced to pay a fine of Tanzania shillings Two Million only or to serve a term of three years imprisonment for second count; a fine of Tanzania Shillings Two Million only or in default to serve three years imprisonment for the third count; to pay a fine of Tanzania shillings Two Million only or in default to serve a term of three years imprisonment for the fourth count. The appellant is aggrieved by the decision of the trial court delivered by Hon. G. J. William, SRM on the 13th day of September, 2024. He has filed a petition of appeal, with 10 grounds of appeal as follows: 1. That the trial court erred in law and fact by entertaining the case while it has no jurisdiction. 2. That the trial court erred in law and fact by convicting and sentencing the accused person basing on unfairness trial since the appellant and 4th accused were not given the right to cross-examine some witnesses and for failure to give each of the parties the right to object or otherwise to the tendering and admission of exhibits. 10 3. That the trial court erred in law and fact by improperly recording evidence of witnesses during cross examination leading to mistrial. 4. That the trial court erred in law and fact by failure to analyze evidence adduced by defence witnesses during the trial hence reached at a wrong decision. 5. That the trial court erred in law and fact by basing conviction on caution statement of the 1st accused which was not tendered after completion of inquiry to form part of prosecution evidence. 6. That the trial court erred in law and fact by failure to comply with procedure of recalling witness, PW15. 7. That the trial court erred in law and fact by failure to comply with procedure of declaring hostile witness. 8. That the trial court erred in law and fact by entertaining the criminal case of civil administrative without exhaustion of civil remedies as required by law. 9. That the trial court erred in law and fact by not affording the right of being represented by advocate on the day of 11 judgment who was in criminal session hence failed to give mitigation. 10. That the trial court erred in law and fact by convicting and sentencing the accused person while the case was not proved on the required standard. At the hearing, the appellant was represented by Mr. Peter Kamyalile and Mr. Samwel Kipesha, learned Advocates and the Republic was being represented by Mr. Jerinus Mzanila and Ms. Ashura Pazi learned State Attorneys. Hearing was conducted virtually, as the presiding Judge was attending Criminal Sessions Case at Mpanda, Katavi Region and the parties to the case were at the High Court Premises, Sumbawanga. On behalf of the appellant, Mr. Peter Kamyalile, learned advocate submitted praying to abandon the 8th and 9th ground of appeal and then proceeded as follows: On the 1st ground of appeal, the court had no jurisdiction on the following reasons: (1) There was no certificate conferring jurisdiction under section 12(4) of Economic and Organized Crimes Control Act, (EOCCA). 12 According to the charge sheet, the 1st count was an economic offence. The 2nd - 5th count were non-economic offences. In the District Court the case was economic and non-economic offence. The record shows, the District Court was given consent only. There was no certificate to confer jurisdiction. The trial court had no power to hear and determine the case. The omission was fatal which renders the proceeding and judgment to be invalid. The counsel cited the case of William Kilunga Vs. The Republic, Criminal Appeal No. 447 of 2017 Court of Appeal of Tanzania at Shinyanga at page 12 and Kurwa Limbu @ Musha Vs. The Republic, Criminal Appeal No. 279 of 2018, Court of Appeal of Tanzania at Shinyanga at page 12 - 13. ” As to the consequences in the circumstances where the DPP or the Principal State Attorney-In-Charge issues a certificate under section 12(3) to try both economic and non-economic offences instead of section 12(4) of the EOCCA, we ent rely and respectfuly subscr be to the argument by Ms. Sakafu that no jur sd ct on was conferred to the tr al court, as a result the whole 13 proceedingsandthedecisionsinboththetrialandfirst appelateCourtwasrenderedanulity.” (2) The consent was defective. The consent and certificate were issued for an economic offence involving four accused persons. The charge shows the economic offence had three (3) accused. Mhina s/o Salum Mbwambo had no count on economic offence. The certificate and consent were issued to the non-existed offence. (3) The trial court took plea before being conferred with the jurisdiction. The record shows at the 1st page of the proceedings on 09/05/2023 the charge was read over to the^accused person and the 2nd page. The certificate and consent were received on 23/05/2023. Thus, during plea the trial court had no jurisdiction. On the 2nd ground of appeal, the counsel submitted that it is a legal right that each party has a right to cross-examine. If a party will waive his right to cross examine, then the record must reflect. It is also a legal position that failure to seek opinion of the adverse party on the admission of an exhibit is fatal. The counsel submitted by pointing out that in this case, at page 50 of the electronic proceedings DW1, DW2 and DW3 were not given 14 right to cross examine DW4. Also, the 4th accused was not given the right to cross examine DW1, DW2, DW3 and DW5 (refer page 27 - 28, 44, 50, 54). The 4th accused was not given the right to object exhibits P1, D1, D2, D3, D4, (at page 19, 34, 43, 48, 49). That was fatal, and it was not fair trial which vitiated the whole proceedings. That has been clarified in EX.MT. 66807 SGT George Kwisema and 2 Others Vs. The Republic, Criminal Appeal No. 127 of 2020, Court of Appeal of Tanzania at Dar es Salaam at page 8 -9 and the case of Joshua Kwolesya @ Adam Vs. The Republic, Criminal Appeal No. 142 of 2020, Court of Appeal of Tanzania at Mwanza, page 8 - 10. In the case of EX.MT. 66807 SGT George Kwisema and 2 Others Vs. The Republic (Supra) it was held that: “Nowhere in the proceedings has it been refected that Mr. Komba represented the second and third appellants. Therefore, the trial Magistrate's proceedings to admit thoseexhibitsafteronlyMr.Kombahasbeenaskedhas breachedtheprinciplesofnaturaljustice,thataparty shouldnotbecondemnedunheard.Failuretoleteach appelant object or agree to the admission of the 15 intended exhibits is, in our view, fatal. Likewise, not giving the appelant chance to cross-examine PW1 as indicatedonpages32-33,whiletheyhavenotshown indicationtowaivethatright,wasfatal.” On the 3rd ground of appeal; the learned counsel submitted that the recording of evidence at cross examination was improper leading to mistrial. It is difficult to infer the kind of questions which were asked. Example: “It is true, I don’t know.” The mode of recording evidence was fatal and vitiated the proceedings and decision. The counsel cited the case of Mangalu Maduhu Vs. The Republic, Criminal Appeal No. 158 of 2022 Court of Appeal of Tanzania at Tabora page 12 (paragraph 1) and page 13 (paragraph 13). In the cited case the Court emphasized the importance of recording accurate proceedings, that it is a guarantee of justice because it shows what transpired in court. Also, it guarantees hearing on review, revision and appeal. Also, it helps the judges and magistrates in decision making. It is a legal position that the court system may fail to dispense justice if it will not record the proceeding in reliable and authentic manner. In the 16 case of HJORDIS Fammestad Vs. ABSA Bank Tanzania Limited and Another, Civil Appeal No. 30 of 2020, Court of Appeal of Tanzania at (Arusha) page 16 - 17. In the decision the Court held: “Theimportanceofacrediblerecordofthetrialcourt’s proceedings cannot be overemphasized. Credibility of the proceedings is indispensable as one of the guarantees to a fair hearing on review, revision and appeal. Proceedings serve as a backbone in the delivery of justice. Accurate proceedings provide compete information on the happenings of the case that helps judge, magistrates and judicial officers confer impartial decision making in court cases. Judicial system may fail to bring justice if proceedings are not presented in a reliable and authentic manner. ” On the 4th ground of appeal, the counsel for the appellant submitted that the defence evidence was not evaluated as opposed prosecution evidence. He submitted that at page 29 of judgment of the trial court the magistrate has stated. 17 “I have carefully gone through.... ” There is no any evaluation or clarification of points accepted or denied or what supports which point. Failure to analyze the evidence has led to failure to effect justice. It is one thing to summarize the evidence and analyze the same. They are two different things. The counsel referred this court to the case of Yusuph Amani Vs. The Republic, Criminal Appeal No. 255 of 2014 at page 7. The court held that: “The trial court was expected to assess the probative value, credibility and weight of evidence adduced by the defence as against that of the prosecution so as to determine whether there are any reasonable doubts in the prosecution case. We are of considered view that the appellant's defence was disregarded in the evaluation stage which is crucial. Failure to evaluate or improper evaluationofevidenceinevitablyleadstowrongand/or biased conclusions and inferences resulting into miscarriageofjustice.” 18 On the 5th ground of appeal: The trial court wronged to rely on caution statement of 1st accused which was not tendered. Page 128 of proceedings shown the caution statement was not tendered to form part of proceedings. The exhibit was admitted in the ruling on voluntariness of the same. The witness ought to have prayed to tender. It was wrong to rely on the exhibit in convicting the appellant. To emphasize the point the counsel cited the Case of Alex Mgunda and Another Vs. The Republic, Criminal Appeal No. 222 of 2008, Court of Appeal of Tanzania at Iringa at page 7. That it denies the appellant the right of cross examination under section 147 and 148 of the Evidence Act which occasioned a miscarriage of Justice to the appellant and that the caution statement did not form part of the prosecution evidence which was relied by the trial Magistrate to sustain conviction. On the 6th ground of appeal: When a party wants to recall a witness, he must give the reasons to recall. The court can allow or deny. At page 7 of electronic proceedings, it is stated ‘IpraytorecalPW1’without advancing reasons. Rationale is to prevent a chance of witness to come to cure a mistake he/she made. The procedure was not followed in the present case. 19 as explained in Omary Said @ Lubawa Vs. The Republic, Criminal Appeal No. 31 of 2023, [2024] 72CA 486 (24 June 2024) at page 19. “Thepartyseekingtorecalawitnessmustsaywhyhe wantsthewitnesstocomeback.Basedonthereasons, the court may grant the request The language used is ‘The court may in all cases permit' meaning that with good reasons, the court should freely allow the recall of witnesses. ” On the 7th ground of appeal, the counsel for the appellant submitted that there was failure to comply with procedure of declaring hostile witness. He asserted that the procedure of declaring PW5 hostile witness was not followed, since there was no previous statement shown. There must be comparison and contrasting there must be opinion of adverse party if they object or not. The counsel cited the case of Emmanuel @ Magesa Chacha and another vs Republic, Criminal Appeal No 538/2020, Court Appeal Tanzania at Musoma at page 13-14 quoted the directive laid down in the case of Jummane Athman Mketo and The DPP vs. Lengai Ole Sabaya & others the procedure of declaring a witness hostile as: 20 “Having made up his mind to treat the witness as "hostile"the party should after showing a copyofthe witness'previousstatementtothecourt,forma lyapply tothecourtforleavetodoso.Thecourtshouldthen hear the opposite party if he has any objection to the application. Then after comparing and contrasting the evidence of the witness and the contents of his statement and after considering the witness's demeanour in the witness box, as well as the objections, ifany, from the opposite party, the court should make its ruling on the application. If the court grants it, the applicant should then proceed to attempt to discredit the evidence ofthe witness by way of cross-examination." On the 10th ground of appeal, case was not proved on the required standard. There a number of aspects which were not proved, namely: (a) existence of procurement committee was not proved. - Which law established it. - What is Legal duty or function of the committee. 21 - What is the Legal duty violated. - What were the duties of the secretary. According to exhibit PW1, the committee is non existent (b) The responsible/ accountable person is the DED. According to the facts as adduced theiforce account was being administered by DED. That is confirmed by PW1 at Page 20; PW2 at page 26 - link DED Office - Sumbawanga. The counsel submitted that the argument was supported by DW2 (page 33) of electronic proceedings; DW3 at page 47: (19/04/2020) page 47 of electronic proceedings clarified at page 48. According to Rule 3 of the Local Government Authorities tender boards [Establishment and proceedings] Regulation 2018, GN- No 227 of 2018, accounting officer means a Council Director Appointed by the provision of section 33 of the Act, Ruled 30(1) of the GN 227/2018. (c) The element of intentionally abuse of position was not proved. The evidence does not show how the appellant intentionally abused his position. The evidence does not show how the appellant helped Macways 22 General Supply to win the tender or which benefit he got at what value. The testimony of PW11 - show appellant submitted quotation to Mack Ways General supply. Further to the arguments fronted, the counsel for the appellant submitted that the evidence does not show the appellant participated to fill the said quotation form. It is proved by PW10 (page 82, 84) PW12- traders help each other to fill quotations. (d) According to Rule 38 of the Local Government Authorities Tender Boards (Establishment and Proceedings) Regulation 2018 GN. No. 227 of 2018 abuse of authority in local government is not an economic offence and a party who alleges to abuse its authority is supposed to be sued under section 96 of the Penal Code. The alleged item 22.3 and 22.4 of part V of guideline violated does not apply in project of school; the applicable item is under part III of guideline. Out of all what has submitted and what has been cited, the counsel submitted that they are praying that the appeal be allowed, judgment be quashed and sentence set aside. The counsel has submitted that in the circumstances of this case, retrial is not an appropriate remedy because there is a room of possibilities of 23 prosecutions mending and perfecting the nullified proceedings. In the case of John Julius Martin and Another Vs. The Republic, Criminal Appeal No. 42 of 2022, Court of Appeal of Tanzania at Arusha page 9 paragraph 3 and also the prosecution is going to utilize the opportunity of rehearing to amount a better prosecution case by filling in the gaps to the detriment or prejudice of the appellant. Also, if the retrial will be ordered, the documentary evidence might be legally tendered which will amount to filling gaps. Case William Kilunga Vs. The Republic (supra) at page 14 -15. Lastly, evidence available on record as submitted in ground 10 of appeal is not sufficient to mount conviction of appeal. To that point the counsel for the appellant rested the case for the appellant. In response to the submission by the counsel for the appellant Mr. Jerinus Mzanila - State Attorney submitted for the respondent. At the outset he informed this court that they are waiving to submit on grounds of appeal number 2, 4, 5, 6, and 7 and 10. He informed this court that they will focus on ground number 1 and 2 of which in their conviction they believe will serve to dispose this appeal to its entirety. 24 In regard to the 1st ground of appeal, the learned State Attorney submitted that the issue is whether the District Court of Sumbawanga at Sumbawanga had competent jurisdiction to try the appellant who was arraigned before it for, among others, an economic offence. He gave an answer in the affirmative for the reasons to be laid bare in the submission as summarized below. The counsel for the respondent submitted that the charge filed in the trial court, as reflected in the trial court proceedings, was against four accused persons including the Appellant in the instant appeal. The charge had three offences to wit; one: abuse of position contrary to Section 31 of the Prevention and Combating of Corruption Act, Cap. 329 R.E 2019 read together with Paragraph 21 of the 1st Schedule 57 (1) and 60 (2) of the Economic and Organized Crime Control Act, Cap. 200 [R.E 2019] (the EOCCA); two: forgery contrary Section 333, 335 (a), (b) and 337 of the Penal Code, Cap. [R.E 2019]; and, three: uttering false document contrary to Section 342 of the Penal Code, Cap. [R.E 2019], which were committed in the course of the same transaction. The trial court proceedings shows clearly that the court derived its jurisdiction to try the economic case from the consent issued under Section 25 26 (2) of the EOCCA and the certificate conferring jurisdiction on a subordinate court to try an economic offence case under Section 12 (4) of the EOCCA, where the accused person (s) is charged with both economic and non - economic offence. Yet again, the certificate conferring jurisdiction under Section 12 (4) was proper within the realm of the law because the specific provision of the law cited allows the economic offence to be tried simultaneously with non - economic offences in a subordinate court. Consequently, the Respondent during trial satisfied to the letter of the law and the legal stance reiterated in various cases including Salum s/o Andrew Kamande v. The Republic, Criminal Appeal No. 513 of 2020 CAT at Iringa wherein it was observed at page 11, paragraph 2 that: - “...Indeed, Section 3 (1) and (3) (a) and (b) of the EOCCA confers jurisdiction to hear and determine cases involving corruption and economic offences to the Corruption and Economic Crimes Division of the High Court. Nevertheless, there s an except on to that statutoryprescr pt onthatacert f cate ssuedbytheDPP or any State Attorney author zed by h m, may confer 26 jurisdictiononasubordinatecourttotryaneconomic offence. Suchacertificatemaybeissuedpursuant tosection12(3)oftheEOCCAwhereanaccused personischargedwithapureeconomicoffence or under sub-section (4) of section 12 ofthe same Act where the accused person is charged with both economic and non-economic offences. ” [emphasis placed] Despite the consent and certificate being issued under the appropriate sections of the law, the same were not defective on the reason that they mentioned all the accused persons sought to be tried before the economic court, featured all the charging sections in all counts appearing on the charge and vested jurisdiction to the District Court of Sumbawanga to try the offences alleged to be committed by the appellant and his fellows under section 12(4) of the EOCCA. Finally, the same were issued before the commencement of the trial and formally formed part of the proceeding as reflected on page 7 of the appeal records. It was submitted by the counsel that, on the last limb of this ground of appeal, they have also observed on page 1 of the record of appeal that the 27 Appellant and his co-accused were arraigned before the subordinate court and plea-taking was taken in absence of the consent to try them and no certificate to confer jurisdiction on that subordinate court. The counsel submitted that the act of the subordinate court continuing with plea-taking in the absence of the consent and certificate to confer jurisdiction on that subordinate court was not prejudicial to the appellant since substantive matters subject to trial were yet to be entertained. After all, as reflected on page 7 of the records of appeal the appellant and his fellow accused persons were reminded of the charge immediately after the consent and certificate conferring jurisdiction was admitted and adopted to form part of the court proceedings. Regarding the 3rd ground of appeal which faults the lower court for improperly recording evidence of witnesses during cross-examination leading to a mistrial, it is the Respondent’s submission that the same is true because they are unable to infer from the prosecution’s answers which exactly were the questions posed to the prosecutions’ witnesses during cross-examination. The way questions for cross-examination were recorded can be observed among others on pages 78, 90 and 113 where the court has used words such as “itis not true” and “Ihave notsaid.” In the 28 premises, the Respondent is far from suggesting that the testimony of the prosecution witnesses during the trial were fully subjected to cross­ examination and therefore leaves much to be desired. In the case of Kabulofwa Mwakalile & 11 Others v. Republic [1980] TLR the court observed that: - " according to the law of this country, the testimony of a witness cannot be taken as legal evidence unless it is subjected to cross-examination and testimony affecting the party cannot be the basis of a judicial pronouncement unless the party has been afforded an opportunity oftesting its truthfulness or accuracy by way of cross-examination. ” It is without a doubt that both parties during the trial proceedings were given the right to cross-examine the witnesses but in the manner the answers therefrom were recorded by the court could not afford parties to the case and the trial court to exercise the most efficacious test, which is the law has devised for the discovery of truth. Therefore, this was a miscarriage of justice to both parties. 29 As to the consequence of the trial court’s failure to not properly record the questions for cross-examinations, the counsel for the Respondent proposed that this court borrow the course directed by the Court of Appeal in the case of Mangulu Madulu vs. The Republic (Supra). In the referred case it was observed at page 13 of judgment that: - " .... Since we are not sure that if the trial had been conventionally conducted, there could not have been evidence which supported a conviction, it is our view and we accordingly order that there should be a retrial in this case which must be expedited." [emphasis supplied] Also, the learned counsel submitted that on the general principle for ordering retrial the Court in the case of Salum s/o Andrew Kamande v. The Republic (supra) while citing with approval the stance observed in Fatehali Manji v. The Republic [1966] 1 EA 343 emphasized that in so doing, and among others, each case must depend on its own facts and circumstances and order of retrial should only be made where the interests of justice require. 30 In the present matter, having observed that the prosecution and defence witnesses were not properly subjected to cross-examination and the answers therefrom not recorded properly, he submitted that the parties in this appeal cannot be in a good position to test the weight of evidence adduced during trial. Therefore, they prayed that it is best in the interest of justice to order retrial as there will not be any miscarriage of justice. It will be proper in law if retrial will be ordered. In rejoinder, Mr. Peter Kamyalile, learned Advocate, submitted that they have two points: One, that it is still their view that the trial court had no jurisdiction to hear and determine the case. Despite the fact that the certificate was issued under section 12(4) of the Economic and Organize Crime Control Act, they insist that the certificate was defective. The certificate shows that all four accused persons committed all five (5) counts which is not true according to the charge sheet where it shows, the 1st - 3rd accused committed and economic offence. Also, the 4th accused is not involved in first count. They should have used the word “respectively” in order to differentiate. The counsel insisted that the consent and certificate were defective. 31 Furthermore, the counsel has admitted that plea taking was conducted in absence of the certificate and consent. The trial court entered plea of not guilty. That has been admitted by the counsel for the respondent that the consent and certificate were issued on 23/05/2023 (Ref. Page 7). According to the law, a criminal case commences to be heard when a plea is taken. Thus, plea is part of the hearing. That means had it been that they admitted and pleaded guilty the trial court could have convicted the accused persons right away at the stage of plea taking. If you read page 7 of the typed proceedings - the trial magistrate reminded the accused persons on the charges against them. Conviction of the appellant is based on the plea which was taken. The counsel for the appellant submitted that when the trail court commenced to conduct plea taking, the trial court had no jurisdiction. Two, on the argument that whether an order for retrial should be issued or not, the counsel submitted in opposition to the order of retrial being issued. He invited this court to refer the case of Salum Andrew Kamande Vs. Republic (supra) at page 17. He also reiterated the submission in respect of 10th ground of appeal. 32 He also observed that even in the grounds not submitted or which have been waived by the prosecution to submit, there were many defects. He argued that if the order for retrial will be issued will provide an opportunity to the prosecution to fill the gaps. I have heard the submission by both parties, counsels for the appellant and for the respondent. I have also read the record of appeal, which has been placed before me and also available in the eCMS. The question is whether the appeal has merit. At the outset, the answer is in the affirmative. Both parties agree that essentially there were irregularities material to vitiate the proceedings and render the decision illegal, null and void, particularly in the way the proceedings were recorded by the trial magistrate. Also, the question of jurisdiction, that whether the trial court was clothed with necessary jurisdiction to try the case based on account that the trial commenced without there being consent to prosecute the accused persons and certificate conferring jurisdiction. As the documents were received in court and formally made to be part of the record on the 23/5/2023 while plea taking was conducted on the 9/5/2023. These are areas which has been addressed by both parties. However, as it will be obvious later herein the 33 judgment, there are other areas which has been addressed by the appellants only which in my view, have an effect in the decision now being handed down. On the question of jurisdiction, the appellant has argued that the trial court had no jurisdiction. The counsel submitted that the District Court was only issued with a consent to prosecute, there was no certificate to confer jurisdiction. Thus, the trial court had no power to hear and determine the case. the omission renders the proceedings and judgment invalid. In the other angle the counsel for the appellant has submitted arguing that the 1st, 2nd and 3rd accused person were charged with an economic offence and the 4th accused person was charged under the Penal Code, in the 2nd count up to 5th count. The offences in the 2nd to 5th count were non­ economic, which makes the trial to be for a combination of the economic and non - economic offence. For the reason, the certificate conferring jurisdiction to the subordinate court was supposed to be issued under section 12(4) of the Economic and Organized Crime Control Act of 200 R.E 2019. 34 It has however been argued by the Mr. Jerinus Mzanila, learned State Attorney for the respondent that since on the 23/05/2023 the accused persons were reminded of the charges leveled against them, that renders the complaint by the appellant lack merit as the trial was conducted and judgment composed after the subordinate court had been clothed with the necessary jurisdiction. I have a view that since the documents, certificate conferring jurisdiction under section 12(4) of Economic and Organized Crime Control Act and consent to prosecute under section 26(2) of the Economic and Organized Crime Control Act, [Cap 200 R.E 2019] were issued and tendered in court on 23/05/2023 before the commencement of preliminary hearing, and that the appellant and other accused persons were reminded of the charges leveled against them, the trial court had jurisdiction from the time the documents were received up to the conclusion of the trial. The learned state attorney was therefore right that the trial court had the necessary jurisdiction to hear and determine the dispute. The 1st ground of appeal therefore in my view has no merit and is dismissed. 35 It is however worthy to note that according to the record, the preliminary hearing was conducted under section 192 of the Criminal Procedure Act. I am of the view the proper law was section 35 of the Economic and Organized Crime Control Act [Cap. 200 R.E.2022]. However, the procedure is the same under both laws, thus the accused persons were not prejudiced by the anomaly. Also, the counsel for the appellant faulted the consent certificate that it included the name of the 4th accused person who was charged with a non­ economic offence, and by that reason it is defective. I have a view that the inclusion of the 4th accused person did not in any way prejudice any of the accused persons and therefore it was inconsequential so far as the fairness of trial is concerned and also in regard to meeting the end of justice. In the 3rd ground of appeal, the counsel for the appellant raised concern, that the proceedings in the trial court, particularly during cross - examination were improperly recorded leading to mistrial. That it is difficult to infer the kind of questions which were asked. The counsel has argued that it impairs the court to dispense justice as the recording is not reliable and in authentic manner. The argument has been supported by 36 the case of Hjordis Fammestad Vs. Absa Bank Tanzania Limited and Another (supra). The complaint has also been admitted by the counsel for the respondent. The counsel went far as to point page 78, 90 and 113 of the trial court proceedings. The counsel submitted that the record suggests that the testimony of the prosecution witnesses during trial was not subjected to cross-examination. He cited the case of Kabulofwa Mwakalile and 11 Others Vs. Republic (supra) whose relevant holding is quoted at page 29 of this judgment. In short, the testimony was stripped off its legality as evidence for want of cross-examination. Thus, it cannot be utilized for legal pronouncement. The situation vitiates the proceedings and the counsel has suggested for an order for retrial of the whole case as a way forward. For the point, he has cited the case of Mangulu Madulu Vs. The Republic (supra) at page 13: “Since we are not sure that if the trial had been conventionaly conducted, there could have been evidencewhichsupportedaconvictionitisourviewand 37 weaccordinglyorderthatthereshouldbearetrialinthis casewhichmustbeexpedited”. However, the counsel has proposed the way forward cautiously that in doing so, and among others, each case must depend on its facts and circumstances and order of retrial should only be made where the interest of justice require. He has cited the case of Salum s/o Andrew Kamande Vs. The Republic (supra) where in the case of Fatahali Manji Vs. The Republic [1966] 1 FA. 343 was cited with approval. According to the counsel for the respondent, parties in this appeal cannot be in a good position to test the weight of evidence adduced during trial. He prayed that it is the best interest of the justice to order retrial as there will be no any miscarriage of justice. The proposal has been opposed by the counsel for the appellant. In his submission he seems to have suggested that this court should determine other grounds of appeal which have been argued by the appellant but waived by the respondent. He argues that an order retrial will allow the prosecution to mend their case thereby prejudice the appellant. 38 The question therefore is whether this court should issue an order for retrial. I have gone through the complaints by the appellant, in particular the grounds of appeal which have been waived by the prosecution. A notable thing is that indeed, the complaints were genuine, for example defence evidence by DW1 and DW2 (the appellant and one Peter Simbeye Kitita were not considered. Had it been done so; it would be found clear that the procurement was the duty of the procurement committee which was comprised of six people. The said DW2 testified further to show how actions were being directed by Engineer Emmanuel Nyerere at the instruction of Jacob Mtatitinya (DED). What I learn from such evidence, it is wrong to point at one person for the abuse of position while there were instructions of Mr. Jacob Mtalitinya and the District treasury. It is very clear in the testimony of DW3 Augustino Gospary Msimikwa (page 46 - 48) that specific instructions were issued by DED and also threats were given by one. Mr. Mlatitunge in certain circumstances. The counsel for the appellant also faulted exhibit P20 that it was wrongly relied upon in convicting the appellant as the same was not tendered. He has submitted that the witness never prayed to tender. 39 I think the fault is not founded. At page 118 of the proceedings on the 16/10/2023 PW15 Mohamed Kassimu prayed to tender upon objection the trial court went into an inquiry. At page 128 of the proceedings, it shows the document was admitted and marked exhibit P20. I think the argument would have been which evidence did corroborate the contents of exhibit P20. I have reached at the question in understanding that a retracted confession needs to be corroborated as per Alex Ndendya Vs. Republic (Criminal Appeal No. 207 of 2018 [2020] TZCA 202 (6 May 2020): “With regard to the cautioned statement, we go along with the learned state attorney that because it was retracted, as a matter of prudence, it needed corroboration to rely out it convict the appellant”. There is no evidence clear for it to be relied upon according to the dictates of law. For that matter it was wrong to base on the caution statement retrial would be a good course if the evidence was water light. However, under the circumstances, the evidence was scant to convict the appellant. I therefore refrain to order for retrial. 40 Under the circumstances, I allow the appeal, quash judgment set aside as sentence and order an immediate release of the accused person unless he is being held for another lawful cause. It is ordered accordingly. Dated and delivered at Sumbawanga this 04th day of November, 2024. . M. MWENEM JUDGE 41