DPP Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA DC CRIMINAL APPEAL NO. 67 OF 2023 (Originating from the Ruling of the District Court of Iramba before (Hon S.W Nindi-SRM) dated 30th May, 2023 in Economic Criminal Case No. 1 of 2023) THE DIRECTOR OF PUBLIC PROSECUTIONS……….……………………APPELLANT VERSUS LINNO PIUS MWAGENI…………..............................................1ST RESPONDENT MUHIDIN MOHAMED LIKWEBE…………................................2ND RESPONDENT HUSSEIN ABASSI SEPOKO………….........................................3RD RESPONDENT BAHATI MWENDO KITTOH………….........................................4TH RESPONDENT JUDGMENT Date of last order: 19/12/2024 Date of Judgment: 14/02/2025 E.E. KAKOLAKI, J. This case involves the Director of Public Prosecutions (DPP) as the appellant and Linno Pius Mwageni, Muhidin Mohamed Likwebe, Hussein Abassi Sepoko 1 and Bahati Mwendo Kittoh as respondents. The respondents were charged with multiple counts including Abuse of Position, Diversion, Embezzlement, Misappropriation and Occasioning Loss to the Specified Authority under various provisions of the Prevention and Combating of Corruption Act (PCCA) and the Economic and Organized Crime Control Act (EOCCA) in their capacities as public servants duly employed by the Iramba District Council. Unlike the first three respondents who were public servants, the fourth one Bahati Mwendo @ Kittoh was a private individual and Managing Director of LIVETS RESA LIMITED, alleged to have directly involved in the transactions that were connected to the offences booked with as his company was recipient of the funds that were allegedly misappropriated and diverted by the public servants. Before the trial could start after returning a plea of not guilty the respondents through their advocate raised a preliminary objection based on the provisions of section 4(2) and (3) of the Criminal Procedure Act Cap 20 [R.E 2022] (the CPA) arguing that, the charges were improperly before the court as the prosecution had failed to follow and subject them first to administrative or disciplinary procedures (proceedings) before instituting criminal charges against them. It was specifically argued that, the prosecution ought to have 2 exhausted first administrative or civil remedies as required by the amended provisions of section 4(2) and (3) of the CPA before subjecting respondents to criminal proceedings. Having considered submission from both parties the District Court of Iramba sustained the raised preliminary objection on the ground that, the respondents were improperly paraded before the trial court for criminal trial due to non-compliance with administrative procedures by the prosecution as specified under section 4(2) and (3) of the CPA. It observed further that, there was no evidence proving that the required or available administrative remedies were exhausted first before engaging with criminal proceedings, thus a finding that the criminal charges against them were prematurely preferred and for that matter dismissed the charge against them while acquitting them under section 225 of the CPA as the court had no jurisdiction to try them. Despite of that acquittal, the trial court ordered that the prosecution was at liberty to prefer fresh charges against the respondents upon the proper administrative procedures followed. Displeased with the said decision the appellant lodged this appeal basing on two grounds that: 3 1. That the trial Court erred in law and facts by acquitting the accused persons notwithstanding the facts that the case was not heard on its merits. 2. That the trial Court grossly misdirected itself by dismissing the charge brought against the accused persons under the wrong provision of section 225 of the Criminal Procedure Act, Cap. 20 [R. E. 2022]. At the hearing of the appeal the appellant appeared represented by Mr. Gothard Mwingira, learned State Attorney while all respondents enjoying the services of Mr. Engelbert Boniphace, learned advocate. Submitting in support of the first ground of appeal Mr. Mwingira contended that, the trial court was in error to acquit the respondents without hearing the case on its merits as the trial court should have first fully heard the case to establish whether the administrative measures required under section 4(2) and (3) of the Criminal Procedure Act (CPA) were indeed invoked or not before preferring criminal charges. To him the trial court's decision of acquitting the respondents was premature and based on mere submissions without any proof of evidence on compliance with section 4(2) and (3) of the CPA. He emphasized that, the trial court should have heard the case in full to establish whether the administrative measures were invoked against the respondents or not 4 instead of relying on mere submissions from respondent’s advocate which in essence is not evidence as evidence was required to prove non – compliance of the provisions of section 4(3) of the CPA otherwise the raised ground would not qualify to be a preliminary objection on point of law. To fortify his stance the Court was referred to the case of R Vs. Donatus Dominic @ Ishengoma and 6 Others, Criminal Appeal No. 262 of 2018 (CAT) that made reference to the case of Transafrica Assurance Co Ltd Vs. Cimbria (EA) Ltd [2002] EA, where it was held that, a statement of fact by counsel is not evidence. He thus prayed the Court to find merit on this ground. On the second ground of appeal regarding misapplication of section 225 of the CPA, the appellant argued that, the trial court misdirected itself to dismiss the charges and acquit the respondents under section 225 of the CPA, since that section does not provide for an acquittal but rather dismissal of charges and discharge of the accused persons, which discharge does not bar further prosecution of the discharged accused on the same facts. He also pointed out that, the trial court's order for acquittal was inconsistent with its own statement in the ruling that, the prosecution is at liberty to prefer fresh charges. In view of the above submission, the appellant prayed for the appeal to be allowed, to set aside the impugned ruling of the trial court and 5 order for the continuation of the trial against the respondents so as to serve the end of justice as the trial court's decision was based on procedural errors and misapplication of the law. On the respondents' side Mr. Boniphace countered the arguments by the DPP. On the first ground while conceding to the submission that, section 4 of the CPA was amended to speed up criminal matters he was quick to counter it that, the appellant misinterpreted subsections (2) and (3) of section 4 of the said CPA. He deposed that, these subsections are exceptions to the general rule in subsection (1), stating that all criminal offences shall be tried in accordance with the CPA. According to him the exceptions require that where other laws provide for different procedures, then the same must be exhausted first, which in the present matter the respondents being public servants ought to have been treated first under the Public Service Act and its regulations before being subjected to criminal trials. He thus invited the Court to find that, the ground is unmeritorious and should be dismissed. On the second ground, the learned counsel acknowledged as an irregularity the trial court's use of the term "acquittal" instead of "discharge". He however argued that, the irregularity is curable by this Court invoking its 6 revisionary powers, as it does not affect the substance of the decision. He thus invited the Court to correct that irregularity by substituting the term "acquittal" with "discharge," as the trial court's decision was based on the proper application of the law regarding the need to exhaust administrative remedies first before preferring criminal charges. He challenged appellant’s claim that, the trial court dismissed the charges under section 225 of the CPA arguing that, the ruling did not contain such an order and that the DPP's contention was not supported by the trial court's ruling. It was his submission that the appellant introduced a new ground of appeal that was not part of the original appeal. He contended that the appellant's focus on the applicability of section 4 of the CPA was not relevant to the grounds of appeal, which were to be based on the trial court's findings and not its reasoning. I have carefully followed the fighting arguments by the parties and before venturing unto determination of its merits or otherwise I find it imperative to address first whether the raised ground of objection before the trial court qualified to be a point of law which in my humble opinion need not detain this Court. The settled law as held in the case of Mukisa Biscuits Manufacturing Co. Ltd Vs. West End Distributors Ltd, is that a 7 preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. In the present matter it is uncontroverted fact that, the respondents who were facing charges under PCCA and EOCCA challenged the charges against them on the ground that, the trial Court lacked jurisdiction to try the matter as the prosecution had infracted the provisions of section 4(3) of the CPA calling for resort to the civil or administrative measures before preference of criminal proceedings against them. In my humble opinion the objection was raised out of clear implication that criminal proceedings against them could not stand without resort first to civil or administrative measures, the ground which if sustained would dispose of the matter as it did. I thus find the same to have qualified to be a point of law. Having so found I now move to determination of the first ground of appeal in which the issue is whether the trial court was justified to acquit the respondents despite of the case not being heard on merit. Mr. Mwingira’s contention is that it ought to have acquitted the respondents at the end of the trial and after satisfying itself as to whether the same were subjected to administrative disciplinary procedures before being tried in criminal 8 proceedings. Mr. Boniphace is of the contrary view submitting that, much as the provision of section 4(3) of the CPA mandatorily provides for exhaustion of civil or administrative remedies first before invocation of criminal proceedings to a public servant who was to be treated under Regulation 50 of the Public Service Regulation, 2022, which requirement was infracted by the appellant then, the trial court was correct to dismiss the charge and discharge them despite of the acquittal order that was wrongly entered, the remedy of which was to revise and substitute it with discharge order. Gathering from both parties’ submission it is uncontroverted fact that, The Public Service Act, [Cap. 289 R.E 2019] and its regulations of 2022, are general laws providing for a comprehensive legal framework for handling conducts of public servants including disciplinary procedures to a public servant more so in a situation where the provisions under those laws have been infracted or the public servant had conducted himself in a manner attracting invocation of criminal proceedings against him. It sounds good also to learn that Regulation 50 (a) – (e) of the Public Service Regulation, 2022, GN. No. 444 of 24/06/2022, specifically provides for rules of procedure to be adopted or applied where criminal proceedings against the public servant are pending or concluded. And in addition, Regulation 51 provides 9 for rules where criminal proceedings have been instituted and concluded against the public servant independent of disciplinary or administrative measures. The said Regulation 50 (a)-(e) of the Public Service Regulation reads: 50. Where a public servant is alleged to have committed a disciplinary offence and the act or omission constituting such offence also constitutes a criminal offence under any written law, the following rules shall apply: (a) where no disciplinary proceedings under these Regulations have been commenced in respect of the disciplinary offence, but proceedings for the criminal offence have been instituted against the accused public servant in any court of law, no disciplinary proceedings shall be commenced until after the conclusion of the criminal proceedings; Provided that, the accused public servant may be interdicted in accordance with provisions of regulation 38(1); (b) where disciplinary proceedings have been commenced and during the pendency of such proceedings, criminal proceedings for the criminal offence are instituted, the disciplinary proceedings shall be stayed and no further step shall be taken in respect of that disciplinary proceedings until after the conclusion of the criminal proceedings; 10 (c) where criminal proceedings have been commenced and concluded against the accused public servant and the public servant is acquitted of the criminal charge on a legal technicality, the acquittal shall not be a bar to disciplinary proceedings against the accused public servant on the same facts. Disciplinary proceedings may be instituted or continued against the public servant and the public servant may be punished for that disciplinary offence as if no criminal proceedings had been instituted and concluded against him; (d) where criminal proceedings have been commenced and concluded against the accused public servant and the public servant is convicted of the criminal offence, the disciplinary authority may suspend the public servant from the exercise of the powers and functions of his office pending consideration of the case under the provisions of these Regulations; (e) where the public servant has been convicted of a criminal offence, he shall be deemed to have been found guilty under the provisions of these Regulations of a disciplinary offence based upon the same charges or the same facts which formed the grounds of the criminal charges of which he was convicted, and the disciplinary authority shall find him guilty, without instituting or continuing any disciplinary proceedings; 11 The above provisions of the law in my humble opinion provides for procedures under which the proceedings initiated against the public servant can be conducted regardless of which one starts between the criminal proceedings and disciplinary proceedings. For instance, the plain interpretation of Regulation 50 (3) of the GN. No. 444 of 2022 is unambiguous in that, criminal proceedings to a public servant can precede the disciplinary proceedings or administrative measures and if concluded by acquittal on grounds of technicality then disciplinary proceedings can be preferred against him on the same facts. The law is settled in our land as provided under section 4(1) and (2) of the Criminal Procedure Act, [Cap. 20 R.E 2022] (the CPA) that, all offences under the Penal Code and any other law shall be dealt in accordance with the provisions of CPA, save where that other law provides differently for the regulation of the manner or place of investigation into, trial or dealing in any other way with those offences. However, with the amendment of the law brought in by the Written Laws (Miscellaneous Amendments) Act, 2022, Act 1 of 2022, the provision of section 4(3) was added by invoking a mandatory requirement of exhaustion of the remedies provided in civil or administrative domains before invocation of the criminal process in accordance with the 12 said Act. For clarity I find it imperative to reproduce the provision of section 4(1),(2) and (3) of the CPA as follows: “Procedure to be adopted for trial of offences 4. (1) All offences under the Penal Code shall be inquired into, tried and otherwise dealt with according to the provisions of this Act. (2) All offences under any other law shall be inquired into, tried and otherwise dealt with according to the provisions of this Act, except where that other law provides differently for the regulation of the manner or place of investigation into, trial or dealing in any other way with those offences. (3) Notwithstanding subsection (2), where a matter is of a civil, administrative or criminal nature, as the case may be, exhaustion of the remedies in civil or administrative domains shall be mandatory prior to the invocation of the criminal process in accordance with this Act.” [Emphasis added] In my humble view the introduced subsection (3) of section 4 to the CPA came in with three purposes. One, to avoid concurrent or parallel pursuit of remedies against the accused person or the public servant facing criminal charges more so when the previously instituted matter come to a conclusion 13 before consideration is made to resort to another remedy, as also observed by this Court speaking through my brother Ismail, J (as he then was) in DPP Vs. Jitesh Jayantlal Ladwa and Another, Criminal Appeal 111 of 2022 (HC) Tanzlii. Secondly, to respect and uphold civil measures or administrative processes as provided under the Public Service Act and its regulations of 2022 so as to avoid subjecting the accused person or public servant to criminal proceedings at the same time and in the circumstances where civil or administrative measures could be invoked as first resort so at to resolve the matter to its finality. It is so as the trite law as spelt out in the cases of Bahati Matimba Ngowi vs. Thomas Mbwate and Another, Civil Appeal No. 15 of 2019, Parin A. A Jaffer & Another Vs. Abdularasul Ahmed Jaffer and 2 Others [1996] TLR 110, and the Director of Public Prosecution vs. Zhiling Jiao, Criminal Appeal No. 74 of 2022, is that, where the law provides for both extra-judicial and judicial remedies, the extra-judicial remedies should generally be exhausted before recourse is made to the judicial process Third, to avoid employing penal measures as means of realizing civil related claims. Now back to the matter at hand the issue is whether there were any circumstances calling for invocation of disciplinary proceedings or 14 administrative measures first to the respondents as submitted by Mr. Boniphace, to justify the trial court sustain the raised objection given the offences facing them which are Abuse of Position, Diversion, Embezzlement, Misappropriation and Occasioning Loss to the Specified Authority under PCCA and EOCCA. My examination charge sheet and consideration of the submissions made before the trial Court could not establish any evidence or circumstances providing that, in all offences which the respondents were booked with save for the 4th respondents who was not a public servant, either of them could have been subjected first to either civil or disciplinary proceedings (administrative measures) before preference of criminal charge. In other words, none of the offences charged with is falling under any of the offences constituting disciplinary proceedings under GN. No. 444 of 2022. In absence of such evidence or circumstances so providing I distance myself from Mr. Boniphace’s submission that, it was mandatory for the prosecution to invoke and exhaust administrative remedies first against the respondents before preferring criminal charges against them. Instead, I shoulder up with Mr. Mwingira’s proposition that, in absence of such evidence or environment calling for disciplinary proceedings against the respondents in respect of the offences charged with, it was impossible for the trial Court to establish 15 whether the provision of section 4(3) of the CPA was infracted as claimed. I so find as not all criminal offences facing public servants are amounting to or constituting disciplinary offences to then or civil nature claims to none public servants. In view of that it is the findings of this Court that, the trial court went astray when ruled out that there was contravention of the provisions of section 4(3) of the CPA by the prosecution without any proof to that effect as it relied on mere submission by the respondent’s counsel which in law is not evidence as held in the case of Transafrica Assurance Co Ltd (supra) since there was no established evidence to suggest that the respondents ought to have undergone disciplinary proceedings first. Thus, the first ground of appeal this Court is satisfied has merit. Next for determination is the 2nd ground in which the issue is whether the trial court was justified to discharge and acquit the respondents from the charge despite of the case not being tried on merit. From both parties’ submission it is accepted fact that the case did not go to full trial and therefore the trial court erred to acquit the respondents in which the Court was prayed to invoke its revisionary powers under section 372 of the CPA and section 44(1)(a) and (b) of the Magistrates Courts Act, [Cap. 11 R.E 2019] and revise the acquittal order by setting it aside and substitute the 16 same with the discharge order. I think this ground need not detain this Court much basing on the above findings in the first ground of appeal. While I am in agreement with both learned legal minds that, under section 225(5) of the CPA the proper recourse to be taken in the circumstances the trial Court could not proceed to entertain the charge before it was to dismiss the same and discharge the respondents. However, in view of the findings of this Court in the first ground of appeal above, I find the order of the trial Court dismissing the charge and acquitting the respondent was wrongly arrived at, given the fact that there was no reason for the trial court to believe that the provisions of section 4(3) of the CPA were infracted by the prosecution as found above. Instead, it ought to have dismissed the raised preliminary objection and order for continuation of trial against them. Much as there was no good reason to acquit or discharge the respondents from the charges this Court is satisfied and therefore answer the above issue in negative that the trial court was unjustified to dismiss the charge and acquit the respondents as it did. Hence the ground is meritorious. In view of the above deliberation and findings, this appeal has merit and the same is hereby allowed. The trial Court’s decision is hereby quashed and the orders therein set aside. It is hereby ordered that, the case file in Economic 17 Criminal Case No. 1 of 2023 is restored in the registry of the District Court of Iramba for it to continue with hearing to its finality before another trial magistrate. It is so ordered. Order accordingly Dated at Dodoma this 14th day of February, 2025. E. E. KAKOLAKI JUGDE 14/02/2025. Court: This Judgment has been delivered at Dodoma today on this 14th day of February 2025, in the presence of Mr. Gothard Mwingora, State Attorney for the Appellant, Ms. Joanitha Paul, advocate for all respondents, all respondents present in person and Ms. Veradina Matikila, court clerk. Right of appeal fully explained. E. E. KAKOLAKI JUGDE 14/02/2025. 18