20160728 TZHC Arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [IN THE DISTRICT RE;GISTRV]

AT ARUSHA CRIMINAL APPEAL NO 26 OF 2016 (From Hanang District Court Criminal: Case No. 03 of 2014) THE DIRECTOR OF PUBLIC PROSECUTIONS ......... APPELLANT

VERSUS . ST MARY OTTO MUSHI ................................... 1 RESPONDENT JOSEPH S/0 LOHAY ................................. 2ND RESPONDENT

JUDGMENT Mwaimu, J. On the 14th day of April, 2014, Mary Otto Mushi and Joseph s/o Lohay, the first respondent and second respondents respectively, were · charged with several criminal offences. In the first count, Mary Otto Mushi was charged with the offence of Obtaining Advantage without Lawful Consideration contrary to section 23 (a) of the Prevention and Combating of Corruption Act No. 11 of 2007. In this particular count, it was alleged before the subordinate court that between July 2010 and February, 2012 at Daniel Noud Primary School, within Hanang District being a teacher employed by Manya~a District Counsel stationed at Daniel ) Noud Secondary School, knowingly, did receive Tshs. Six Million one hundred and fifty three thousand nine hundred and fourty nine (Tshs. 6,153,949/=) from her employer without rendering her teaching service to the school. Likewise, in the second count she was charged with the offence of Cheating contrary to section 304 of the Penal Code Cap 16 RE 2002. The particulars were that on the 14th day of November, 2011, at the same school and employer fraudulently wrote a letter titled "MAOMBI YA I KUBADILISHIWA MUUNDO WA UTUMISHI," purporting to have been working at the school requesting for promotion from Assistant Education Officer Grade III to Grade II. Joseph Lohay was charged in the third count with the offence of Occasioning Loss to a Specified

Authority contrary to Paragraph 10 (1) of the First Schedule to and Sections 57 (1) and 60 (2) of the Economic and Organised Crime Control Act, Cap 200 RE 2002. It is said that between July, 2010 and February 2012 At Daniel Noud Secondary School he failed to discharge his duties- in a reasonable manner and therefore causing Hanang District Council to suffer pecuniary loss of Tshs. six million one hundred and fifty three thousand nine hundred and fourty nine (Tshs. 6,153,949/= ). Both respondents were acquitted on the 18th day of December, 2015, the date the judgment of the District Court was read. The Director 2 of Public Prosecutions was not satisfied and therefore appealed to the Court raising three grounds as follows: 1. That the learned trial magistrate erred in law and in fact in acquitting the Respondents without considering overwhelming evidence against them.

2. That the learned trial magistrate erred in law and in fact for failure to analyze the prosecutions' evidence properly hence landing into erroneous decision.

3. That the learned trial magistrate erred in law for proceeding with the matter which contained Economic and none economic offences without requisite certificate. On the 26th day of May, 2016 the appeal was ordered to be disposed of by way of written submissions. Mr. Timothee G. Mmari, learned State Attorney who represented the appellant addressed ground one and two together. According to him there was sufficient evidence adduced by the prosecution to prove the offences of Obtaining Advantage without Lawful Consideration and cheating. Regarding the third count to ' which the second respondent was charged with, he also urged that there was sufficient evidence on the offence of Occasioning Loss to a Specified Authority. He summarised the evidence in support of his assertion. Mr. Mmari then addressed ground th.ree of the appeal. He urged that the trial Court conducted the trial without taking into account that . the charges against the respondents conta.ined both economic and non 3 economic offences. He said according to section 12 (4) of the Economic and Organised Crimes Act Cap 200 RE 200, a certificate of the Director of Public Prosecutions was a necessary prerequisite without which both the proceedings and judgment are rendered a nullity. He prayed to the Court to allow the appeal by quashing the acquittal and order a retrial. He cited the case of Emmanuel Rutta versus

Republic, Criminal Appeal No. 357 of 2014 (CAT Bukoba), (Unreported) to cement his point. In his reply, Mr. Thadei Lister who appeared for the respondents ' opposed the appeal. On ground three he said the trial magistrate did nothing wrong in hearing the case. According to him no certificate was needed because the offence of Obtaining Advantage without Lawful Consideration contrary to section 23 (a) of the Prevention and Combating of Corruption Act No. 11 of 2007 and Cheating contrary to section 304 of the Penal Code are not economic offences. What was needed in terms of section 57 (1) of Act No. 11 of 2007 he said, was only the consent of the DPP which was complied with. I would start with ground three which has raised a point on breach of the law after the DPP is alleged to have omitted to file a certificate for combining the trial of both economic offences and none economic offences under section 12 (4) of the Economic and Organised Crimes Act. I ' In light of the decision in Emmanuel Rutta versus Republic (supra), I agree with Mr. Mmari learned State Attorney that as there was a mixture of economic and non economic offences, the trial was 4 conducted without the trial court having conferred jurisdiction through a certificate of the Director of Public Prosecutions. The Court of Appeal held: 1 ~ny omission in complying with any of the section mentioned above, any subordinate

courts will not have jurisdiction to try any economic offences or a combination of economic offences and ordinary offences. " The Court of Appeal referred to section 12 (3) and (4) of the Economic and Organised Crimes Control Act. This was an irregularity which rendered the proceedings of the District Court and its judgment a nullity. In those premises, both the proceedings and judgment of the I I District Court of Hanang' are quashed and set aside. The Director of Public Prosecutions is at liberty to re institute fresh proceedings against the respondents. Meanwhile the respondents are set free. As ground three suffices to settle the appeal, I have refrained from dealing with the appeal on its merits. It is so decided. SGD M.P.M. Mwaimu · I

JUDGE 28/07/2016 Judgment delivered on this 28th day of July,: 2016 in the presence of both parties. 5