20140301 TZCA Bukoba

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: OTHMAN. C.J.. LUANDA. J.A. And MUSSA. J.A.^ CRIMINAL APPEAL NO. 152 OF 2013 1. JOVINARY SENGA 2. JESILIN MBASHA 3. ALPHONCE SEBAGANDE .APPELLANTS 4. FREDRICK KITABUMBWIRE VERSUS THE REPUBLIC...................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Bukoba) (Miemmas, J.) dated the 01st day of December, 2010 in Consolidated Criminal Appeal No. 32. 33. 35. 36 of 2010 JUDGMENT OF THE COURT 26th February & 4th March, 2014 LUANDA. J.A.: The above named appellants, along with eight others, were jointly and together charged in the District Court of Karagwe with three counts, namely, one count of armed robbery contrary to sections 285 and 286 of the Penal Code, Cap. 16 and two counts of being in unlawful possession of fire arms and. ammunition contrary to sections 4(1) and 34(1) and (2) of the Arms and Ammunition Act [Now Cap. 200 R.E. 2000]. The appellants and one Kabali Kabwa were found guilty in respect of the 1st count and each was sentenced to 30 years imprisonment and 24 strokes of the cane. Kabali Kabwa, 2nd and 3rd appellant were also convicted with those two counts of unlawful possession of fire arms and ammunition and each was sentenced to 10 years imprisonment in respect of the 2nd and 3rd counts. Then the trial District Magistrate made the following order which we are unable to comprehend. He said: - ’!'Accused Alphonce (sic) Kabali and Jes/in are ordered their sentence to run as follows. 1st count is separated from 2nd and 3 d counts. 2nd and 3 d counts to run concurrently". Be that as it may, the appellants and Kabali Kabwa were aggrieved by that finding. They appealed to the High Court. The High Court quashed the conviction and set aside the sentences in respect of the 2nd and 3rd counts as the same being economic offences which were prosecuted without the sanction of the Director of Public Prosecutions (the DPP). As regards the 1st count the learned High Court Judge was satisfied that the evidence adduced against the above named four appellants was watertight. He allowed the appeal of Kabali Kabwa. Undaunted, the four appellants have come to this Court on second appeal. The appellants were unrepresented and so they fended for themselves. Initially each had filed a separate memorandum of appeal. However, on 21/2/2014 they lodged a joint supplementary memorandum of appeal containing two grounds which can be paraphrased thus: 1. That the learned first appellate Judge erred in law in adjudicating an appeal involving economic offences while the DPP's consent was lacking during trial. 2. The learned first appellate judge erred in law in relying on the appellants' cautioned statements which were taken outside the prescribed time. The respondent/Republic was represented by Mr. Paul Chifungo Makanja learned State Attorney who at first supported the High Court decision which expunged economic counts for lack of consent and upheld the conviction in respect of the armed robbery count. Upon reflection he changed position and supported the appeal. On 5/10/2010 when the appeal was called on for hearing in the High Court, the respondent/Republic through Mr. Kadushi learned State Attorney prayed the proceedings be declared a nullity and a new trial be ordered for lack of consent of the DPP. He said: "Hon. Judge, the appeal is coming up for hearing today and we are ready to proceed. However, I have some preliminary issues which I request the Court to consider. First, the Counts which relate to arms and ammunition were supposed to get the consent o f the DPP because they were brought under the Economic and Organized Crime Control Act. Section 26(1) o f the Act read together with section 57(1) o f the said Act require the consent o f the Director of Public Prosecutions before prosecution is commenced. In the present case there was no such consent We therefore pray that the proceedings be declared a nullity and a new trial be ordered. I refer Paulo Matheo V. R. [1995] TLR 144 and Peter Thomas @ Peter Toshi V. R. [1996] TLR 370. Hon. Judge. . . " In his judgment, the learned Judge said: "Let me start with the issue concerning lack of consent o f the Director o f Public Prosecutions. I have perused the record o f the case including the charge sheet. The charge sheet did not make any reference to the provisions o f the Economic and Organized Crimes Control Act. The section of offence and law simply stated in the second count:- "Being in unlawful possession o f fire arm c/s 4(1) and 31(1) and (2) o f the Arms and Ammunition Act No. 2 o f 1991." Likewise the third count stated: "Being in unlawful possession o f ammunition c/s 4(1) and 34(1) and (2) o f the arms and ammunition Act No. 2 o f 1991. AH in all, those sections should have been read together with the provisions o f the Economic and Organized Crimes Control Act which requires the consent o f the Director o f Public Prosecutions before prosecution commences. It follows that, there was nothing before the District Court to warrant the appellants' prosecution. Refer to Peter Thomas alias Peter Tochi V. Republic [1996] TLR 370 and Republic V. Ishila Kitundu [1981] TLR 339. The appellant's prosecution in respect o f the second and third counts was null and void ab initio. I therefore quash the proceedings to that extent only and order a fresh trial on those counts according to law if the Republic is still interested." From above therefore it is clear that the two counts of unlawful possession of arms and ammunition are economic offences as are spelt out under section 57(1) read together with paragraph 19 to the 1st Schedule to the Economic and Organized Crimes Act, Cap. 200 R.E. 2002 (the Act). Ordinarily offences of these nature are triable by the High Court as economic offences (see section 3(1) of the Act). Further, the trial of these offences would not commence without the consent of the Director of Public Prosecutions (see section 26(1) of the Act). However, in terms of section 12(3), (4) and (5) of the Act, the Director of Public Prosecutions or a State Attorney duly authorized, by a certificate under his hand, has powers to order an economic offence or a combination of economic offence and ordinary offence be tried in a subordinate court. It is that certificate which confer jurisdiction to such subordinate court. The sub-section reads: (5) Where a certificate is issued under subsection (3) it shall be lodged in the court concerned, and shall constitute full authority for, and confer jurisdiction upon, the court in which it is lodged to try the case in question. In absence of consent of the Director of Public Prosecutions and certificate of transfer, the subordinate courts have no jurisdiction to try economic offence or economic offence combined with ordinary offences. In our case we have shown that the economic offences were combined with an ordinary offence and heard in the District Court without transfer and securing consent from the Director of Public Prosecutions. The District Court had no jurisdiction to try those offences. What the District Court had decided is null and void. With due respect to the learned High Court he was wrong to split the case as he had done. We accordingly declare the proceedings both in the trial court and High Court null and void and we quash them. Under normal circumstances we would have ordered a retrial. However, Mr. Makanja has informed the Court that the evidence on their side is weak. He did not press for a re-trial. We accordingly order the release of all appellants unless they are lawfully held in connection with some other matter. Order accordingly. DATED at BUKOBA this 1st day of March, 2014. M. C. OTHMAN CHIEF JUSTICE B.M. LUANDA JUSTICE OF APPEAL K.M. MUSSA JUSTICE OF APPEAL [<ep&% that this is a true copy of the original. Z. A. DEPUTY REGISTRAR COURT OF APPEAL