20090612 TZCA Dar es salaam

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA CORAM: NSEKELA, J.A., OTHMAN, J.A. And MASSATI, J.A. CRIMINAL APPEAL NO. 192 OF 2005 1. RHOBI MARWA MGARE } 2. SAMWEL DAUD ........................ APPELLANTS 3. MARWA WILSON CHACHA@ SINDA VERSUS THE REPUBLIC ............................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mwanza) (Rweyemamu, J.) dated the 29 th day of July, 2005 in HC Criminal Appeal Nos. 138; 139; 140 of 2004 RULING OF THE COURT 20 May & 6 July, 2009 MASSATI, J.A.: The Appellants, RHOBI MARWA @ MGARE, SAMWEL DAUDI and MARWA WILSON CHACHA SINDA, were charged, tried and convicted--by-the Distr,ict-Cour-t~Gf~T.ar-ime--f-er two counts of -unlawful possession of firearms, (first count) and unlawful possession of ammun1t_ion (second count) contrary to sections 4 (1) and 34 of the · ~ - Firearms and Ammunition Act No. 2 of 1991. They were each sentenced to 15 years imprisonment on each count, and twelve 'I . ' 2 strokes of the cane. Their appeals to the High Court were dismissed. Dissatisfied, they have now appealed to this Court. Each. of the Appellants filed a separate memorandum of appeal. The first appellant's memorandum had 7 grounds, the second appellant had 4, and so did the third appellant's. They were not represented. The Respondent/Republic was represented by Mr. Kiria, learned State Attorney. Our attention was immediately drawn to the first ground of appeal in the 2nd Appellant's memorandum. It reads as follows: "{1) That the appellate Judge had erred in law for failing to observe the fact that the case under appeal .was tried by a subordinate court in the (absence) (where) (sic) no consent was filed by the DPP/ '' This point questions the competency of the trial court to try the case. It is a question of jurisdiction i.e. the power of the court to entertain the case. The issue therefore is whether the trial court had power to try the case without the consent of the OPP. As the legality of the whole trial was put in issue, we asked the parties to address 3 us on it first. Although the point was not taken in the lower courts we are certain in our minds that a point of jurisdiction may be raised at any stage, even on appeal (See CHARLES CECIL JOHNSTON v REX (1951) EACA 278 at page 281; MANDAVIA v RATTAN SINGH (1965) EA 118. at page 121). This is because as the Eastern African Court of Appeal said in JOHNSTON's case (supra) the question of jurisdiction is always in issue. The Second Appellant who raised the issue addressed us first. A layman, as it were, he did not even remember the contents of that ground, but on refreshing his memory, he quickly pointed out that in his experience he had been observing the practice of the trial court in such cases and it was that such cases could only proceed after obtaining the consent of the Director of Public Prosecutions. In the present case the trial went on without the consent of the Director of Public Prosecutions. He therefore urged the Court to vitiate the proceedings in the lower courts. On the other hand, Mr., Kiria, the learned State attorney, came up with very attractive arguments. He submitted that, first, there is no provision in the Arms and Ammunitions Act (Cap. 223), which 4 requires the consent of the Director of Public Prosecutions before a prosecution under the law. Second, the learned counsel went on, although the offences were "formerly" prosecutable under the Economic and Organized Crimes Control Act (Cap. 200) a new law had since been enacted and became operational on 4.5.2001 by virtue of GN 66/2001. So, the appellants faced the trial in 2003 when the new law was operationalised. He strenuously argued that since the new law is silent on this requirement, the Court should interpret it to mean that the legislature did not intend that the Economic and Organized Crimes Control Act should also apply in respect of those offences. He further submitted that in such cases, the prosecutor had an option on where to take the case. In response to questions from the Bench, Mr. Kiria submitted that the offences with which the appellants were convicted "ceased" to be economic offences under the Economic and Organized Crimes Act, once the Arms and ~.Ammunition -A<::t became operational ar-id the· latter la\t\f: GI-id- -not w expressly provide for the consent of the DPP before trial. In his view the charges and the trial were lawful. Unfortunately, the learned State Attorney did not cite any authority or provision from the Arms C 5 and Ammunitions Act for the statement that the said offences had ceased to be economic offences. The 2nd Appellant had nothing useful to add in reply, except to recount his 'experience' on the practice of the district court when it came to dealing with such cases. In the course of his submission, Mr. Kiria, the learned State Attorney, did concede that the offences with which the appellants were convicted, also still appear in paragraph 19 of the First Schedule to the Economic and Organized Crimes Control Act (Cap. 200) (hereinafter 'the Act'), and that they were economic offences for the purposes of the Act. His point of departure was that the Act no longer applied to such offences. Alternatively that the offences could be justiciable in the subordinate court at the option of any local prosecutor. · We think that the Act is still good law in this country. The purpose of the law is to provide for a special procedure of dealing with some offences notorious for their adverse effect on the economy of the country. So the First Schedule collects a list of those offences from various statutes, what this Court, in MAGOIGA MNANKA v R, 6 Criminal Appeal No. 105 of 1988 (Mwanza) (unreported) described as "wide ranging mixed grill of crimes". Those offences were not removed from their parent statutes. Section 59 (1) spells out permissible penal measures "but not any other"; whereas section 59 (3) enjoins the imposition of a sentence that is reasonably deterrent". Section 59 (2) prescribes the maximum punishment for all economic offences, as observed in MICHAEL MAPUNDA v R, Criminal Appeal No. 118/1993 (Arusha) (CA) (unreported). Whereas section 60 provides for principles of sentencing to all proved economic offences. There are provisions governing the jurisdiction of the courts. In section 3 (1) it is provided that the High Court, sitting as the Economic Crimes Court has jurisdiction; but the DPP can also transfer by a certificate, under his hand, any economic case, to be tried by a subordinate court. It is provided under section 12 (3) of the Act that- "The Director of Public Prosecutions or any State Attorney duly authorized by him mar✓ in each case in which he deems it necessary or appropriate in the public interest by a certificate under his hanc;1✓ order that any case ' . .- 7 involving an offence triable by the Court under this Act be tried by such court subordinate to the High Court as he may specify in the Certificate. ,✓ In section 12 ( 4), the Director of Public Prosecutions has powers to sanction the trial of a combination of economic and non- economic offences in a subordinate court. And section 26 (1) of the Act provides: ''Subject to the provisions of this section, no trial in respect of an economic offence may be commenced under this Act save with the consent of the Director of Public Prosecutions. Last, but not least, it is set out in section 57 (2) of the Act. ''57 (2) The Minister may, by order published in the Gazzette, and the prior approval by resolution of the National Assembly amend - or .otherwise alti:r ~. the· .. First Schedule to this Act but no offence shall be removed from the First Schedule under this section except by an Act of Parliament. (Emphasis added) 8 From this provision it cannot be argued that the removal or non-application of the scheduled offences is a matter of inference or assumption, but must be expressed by an Act of Parliament or its resolution. The next question then is whether the offences under the Arms and Ammunitions Act, (Cap. 223) have been removed from the First Schedule to the Act. As observed above Mr. Kiria could not refer to us any provision in the Arms and Ammunitions Act (Cap. 223) or mention any Act of Parliament which removed the offences of being in un-authorized possession of firearms and ammunitions, from the First Schedule to the Act. We, on our part, are aware that there are several amendments to the Act, and in the course, several offences, such as the original paragraphs 1 and 5 of the First Schedule were removed by Acts No. 3 of 1993 and No. 2 of 2007. There were also amendments to section 35 by Act No. 2 of 1996, section 2 by Act No. . .. . - 4'> 2 of 2007, and that section 27 has been repealed by Act No. 27 of 2008. Apart from these, we are not aware, nor have we come across any Act of Parliament that has the effect of removing the said offences from the First Schedule to the Act. We are thus, of the firm view that those offences are still economic offences and justiciable 9 under the Economic and Organized Crimes Control Act. And that means as shown above, their prosecution needs the DPP's consent; and that a subordinate court has no jurisdiction unless given the fiat under sections 3 (2) or 12 (3) of the Act. With respect, it is a misdirection for Mr. Kiria to submit that any prosecutor has an option on where to institute such charges. The law only gives such discretion to the High Court (sitting as the Economic Crimes Court) or the OPP. The question of non-compliance with sections 12 (3A) (now 12 (4) and 26 (1) of the Act (Cap. 200) was also considered by this Court in HAMIDU ABDALLAH BILA v R Criminal Appeal No. 73 of 2004 (Mbeya) (unreported), in which the appellant and others were also jointly charged with unauthorized possession· of a firearm contrary to paragraph 19 of the First Schedule and sections 56 (1) and 59 (2) of the Act read together with sections 13 (1) and 31 (1) of the Arms and Ammunitions Ordinance (Cap. 223) as amended. He was convicted, and his appeal to the High Court was unsuccessful. On a second appeal to this Court, he complained against, inter alia, non-compliance with sections 12 (3A) (now 12 (A) and 26 (1) of the Act. The Court found that the consent and the certificate were duly 10 issued before the trial of the case commenced, and so the trial complied with the law. Which is to say that this Court takes cognizance that this is the law, and has to be complied with in the . prosecution of an offence such as the one involved in the present appeal. In the present case, there is no dispute that the prosecution of the appellants in the district court of Tarime was not sanctioned by the Director of Public Prosecutions under sections 26 (1) or 12 (3) of the Act. Earlier before the Appellants went to trial this Court had to deal with a similar issue in PAULO MATHEO v REPUBLIC, (1995) TLR 144 (CA). In that case, the Appellants were charged with armed robbery and also, as in the present case, unlawful possession of firearms. The trial began without the DPP's consent but in the middle of the trl'al; th@ DPP .gave his consent and the·trial continued. The appellant was convicted of unlawful possession of a firearm and sentenced to 15 years imprisonment. His appeal to the High Court was partially successful as the sentence was reduced but the conviction remained 11 intact. On appeal, this Court held that the posthumous consent of the DPP was invalid, and could not regularize the trial, and that: "The consent of the DPP must be given before any trial involving an economic offence can commence ........ " While in· PAULO ·MATHE0 s case,· tonsent·was given· midway,.· 1 in the present case there was no consent for the prosecution of the case at all, or the DPP's certificate for the trial of the case in the district court. It follows that in the absence of the DPP's consent and certificate of transfer of the economic offence to be tried by Tarime District Court, in terms of section 12 (3) and 26 (1) of the Act, the subordinate court had no jurisdiction to try the case. The trial was therefore a nullity and the ensuing convictions and sentences nothing but nullities. Even the proceedings before the High Court on first appeal were a nullity. Consequently, we think that there is merit in the point of law raised by the Second Appellant. We therefore allow the appeal, quash all the proceedings and judgments of the courts below, and 12 set aside the sentences imposed on the appellants. We order that the appellants be tried de nova, at the discretion of the Director of Public Prosecutions. Meanwhile we order that they be forthwith released from prison unless otherwise lawfully held. It is so ordered. DATED at DAR ES SALAAM this lih day of June, 2009. H. R. NSEKELA JUSTICE OF APPEAL M. C. OTHMAN JUSTICE OF APPEAL S. A. L. MASSATI JUSTICE OF APPEAL (P. A LYIMO) DEPUTY EGISTRAR