david walter msumba another vs republic 2016 tzca 851 19 august 2016

If* THE COURT OF APPEAL OF TANZANIA

AT P A R ES SALAAM jC.Qll.tlA : iv;:;-SIF.I, J.A., MASSATI, .I .A., And M U ^ '.S n A , 3./U C R IM IN A L A P P E A L NO. 324 OF 2015 1. DAVID W A L T E R M SU M B A 2 . MlfSSTA KOKAMED SAID ..................................................... APPELLANTS

VERSUS TS !E R E P U B L I C ...................................................................................... R E S P O N D E N T (Appeal from the decision o f the High Co urt o f Tanzania at Dar es Salaam ) (Twaib, 3.) Dated 18th day o f March, 2015 In Criminal Appeal No. 112 o f 2014

JUDGMENT OF THE COURT 17'n May, & 19th August, 2016 M JA S IZ a, .7.A .: In the Resident Magistrate's Court at Kisutu Dar es Salaam, David Walter Msumba (the 1st appellant) and Mussa Mohamed Said (the 2nd appellant) were charged with three counts namely, (1) Interference with property used for the purpose of providing a necessary service contrary to paragraph 20(1) and (2) (b) of the First Schedule and sections 57(1) and 60 (2) of the Economic and Organized Crime Control Act [Cap 200 R.E. 2002] (the Economic Crime Act); (2) Forgery contrary to section 333, 335 (a) and 337 of the Penal Code, Cap 16 R.E. 2002 (the Penal Code) and (3) Personating public officers contrary to section 100 (b) of the Penal Code. i They were both convicted on the 1st and 2nd counts and were sentenced to five (5) years imprisonment on each count and the sentences were to run concurrently. The 2nd appellant was also convicted on the 3rd count and was sentenced to 2 years imprisonment. Being aggrieved by the decision of the Resident Magistrate's court, the appellants appealed to the High Court. Their appeal was unsuccessful hence this second appeal to this Court. At the hearing of the appeal the 1st appellant was represented by Mr. * Symphorian Kitare, learned advocate while the second appellant appeared in person and had to fend for himself. The respondent Republic had the services of Mr. Mohamed Salim, learned Senior State Attorney, assisted by Selina Kapange, learned State Attorney. Counsel for the 1st appellant presented three grounds of appeal 1. The tria l Judge erred in iaw and in fact to convict the appellant relying on the evidence presented by the tria l court that d id not m eet a required standard.

2. The tria ljudge erred in law and in fact relying on the evidence against the second appellant to convict the 1st appellant.

3. The tria l jud ge erred in law and in fact fo r not considering evidence that exhonerated the appellant from the charge. The 2nd appellant presented an eight-point memorandum of appeal which is summarized as follows:- 1. The case against the appellant was not proved beyond reasonable doubt. The prosecution witnesses contradicted each other.

2. The first appellate court failed to evaluate the evidence on record.

3. The High Court Judge m isdirected h im self in relying on Exhibit P I w ithout calling a handwriting expert Before hearing the appeal on merit Mr. Kitare brought forth a point of law as to whether or not it was proper fo r the prosecution to com bine econom ic and non-econom ic offences. He argued that section 12 (4) of the Economic Crime Act was not complied with. Therefore the trial before t'ne Resident Magistrate's Court was a nullity, and the conviction was not proper. He asked the Court to quash the conviction against the 1st appellant and to set aside the sentences of 5 years imprisonment meted out to the appellant. Mr. Kitare also contended that the evidence on record was not sufficient to ground a conviction against the 1st appellant. He submitted that the first appellate court relied on the evidence of PW2, PW3 and PW5 which did not implicate the 1st appellant. 3 He stated that both charges against the 1st appellant were not sustainable. He therefore asked the Court not to give an order for a retrial given the circumstances. The second appellant being a layman and without the benefit of a legal counsel opted to let the learned Senior State Attorney submit first. Mr. Salim readily conceded that the trial Court had no jurisdiction to hear the combined charges (that is economic and non-economic) given the requirements under sections 12 (4) and 26 (2) of the Economic

Crime Act. He submitte'd that given the circumstances the proceedings of the trial court were a nullity. Therefore the proceedings and judgment of the High Court were also a nullity. He stated that the way forward was for the Court to nullify the proceedings and to order a retrial. On the part of the 1st appellant he agreed with Mr. Kitare that the evidence on record was very weak and was not sufficient to ground a conviction against the 1st appellant. The only evidence linking the 1st appellant was the receipt purported to be signed by him, but no handwriting expert was called as required under section 59 of the Criminal Procedure Act [Cap 20 R.E. 2002] (the CPA). There is no other evidence on record linking the 1st appellant with the charges. However the circumstances are different 4 in respect of the second appellant. He submitted that a retrial should be ordered in respect of the 2nd appellant only. The 2nd appellant did not have much to say in reply. He simply stated that in relation to count No 3, that he is not a TANESCO worker and that he never pretended to be one in relation to count No.

1. Having carefully reviewed the record and taking into account -the submissions made by counsel, we are of the considered view that the requirement under section 12(4) of the Economic Crime Act has not been complied with. Section 12(4) provides as follows "The D irector o f Public Prosecutions o r any State Attorney duly authorized b y him, may\ in each case in which he deem s it necessary o r appropriate in the p u blic interest; by certificate under his hand order that any case instituted o r to be instituted before a court subordinate to the High Court and which involves a non-econom ic offence o r both an econom ic ■offence and a non-econom ic offence, be instituted in the Court. " Therefore under subsection 4 of section 12, the Director of Public Prosecutions has been empowered to authorize a trial combining economic and non-economic offences. 5 The consent issued by the State Attorney in charge under section 26(2) of the Economic Act makes reference to the first count only. No other consent was issued giving jurisdiction to the subordinate court to handle a combination of economic and non-economic offences in accordance with Economic Act. Section 26(2) provides that:- "The D irector o f Public Prosecutions sh a ll establish and m aintain a system whereby the process o f seeking and obtaining his consent for prosecutions m ay be expedited and may, fo r that purpose,

by *notice published in the Gazette specify econom ic offences the prosecutions o f which sh all require the consent o f the D irector o f Public Prosecutions in person and those the pow er o f consenting to the prosecution o f which m ay be exercised by such officer or officers subordinate to him as he m ay specify acting in accordance with h is general or special instructions . " In Abdul Swamadu Azizi v Republic, Criminal Appeal No. 180 of 2011 CAT, (unreported) the Court emphasized the need to obtain prior consent under section 26(2) of the Economic Act and certificate conferring jurisdiction on a subordinate court to try a combination of economic and non­ economic offences. It was stated thus:- 6 "In the instant case , the counts against the appellant combined the economic and non­ economic offence, but again no certificate of the DPP was issued. This Court in its various decisions had emphasized the compliance with the provisions of section 12(3), 12(4) and ^c/(-ty (// u / c / itt attu n a U L ila c tt// o c/ /t c// t//cr Z7PP must be given before commencement of a trial involving an economic offence." [Emphasis provided]. See for instance Rhobi Marwa Mgare and Two Others v Republic, * Criminal Appeal No. 192 of 2005, Elias V itu s Ndimbo and A n o th e r v R e p u b lic, Criminal Appeal No. 272 of 2007 and Nico Mhando and Two O th e rs v R e p u b lic, Criminal Appeal

No. 332 of 2008 CAT (all unreported). Given the circumstances we are inclined to agree with counsel that the trial court had no jurisdiction to combine economic and non-economic offences in view of the requirements under sections 12 (3), 12 (4) and 26(1) of the Economic Act. The trial was therefore a nullity. We are therefore compelled to invoke section 4(2) of the Appellate Jurisdiction Act, Cap 141 R.E.

2002. We hereby quash the proceedings and judgments of both the trial Court and the High Court and set aside the sentences imposed on the appellants. The next issue for consideration is whether or not to order a retrial. Upon perusal of the record we aie in agreement with both the learned Senior State Attorney and the learned advocate that as far as the I'-1 appellant i concerned, it is evident from the record that he is not directly linked to the in respect of the V,[ appellant. We however, cannot make a similar conclusion as far as the 2Ml1 appellant is concerned. We would therefore order a retrial in respect of the second appellant only. However, in the event that he is found guilty and subsequently convicted, account should be taken that he has already served a term of two (2) years imprisonment out of the five (5) year sentence imposed by the trial Court. S. MJASIRI

JU S T IC E O F A P P E A L S. A. MASS ATI

JU S T IC E O F A P P E A L S.E.A. MUGASHA

JU S T IC E O F A P P E A L < I certify that this is a tru-° ^-e original. E. ™ J S S I

D E P U T Y REGISTRAR COURT C>F APPEAL