19890418 TZCA Dar es Salaam

m THE COlT.RT OP APPF.J,..L OF T.Ai."JZANIA AT . Dt1..R ...:ES -..-. ---~., - ..... _,.,- ~ - SALAAM ........ NYfu.,.~b....Q.. k_MAK~~. A. AND 9m.R, _J..!.fu.) CRIMINAL APPEAL, NO. 54 OF 1989 DIRECTOR OF TUBLIC PROSECUTIONS •••••·•·•·••••••·•••••••·•••• APPELL!\.NT And MOHAMED S1JLEM.i'J.-J ALI ALF.AN •••••••••••••••••••••••••••••.•••• • RESPONDENT (Appea1 from the Ruling of the High Court of Tanzania at Dar·es Salaaip, (Hon. Mnzavas, JK) dated 4th April- 1989) in Misc. Economic AJ)plie?.tion No,.l/~9 JUDGEMENT _QF __ THE COURT This is an appeal by the Director of Public Prosecutions, hereinafter called the D.P.P., against the decision of the High Cou:r.:t, Mnzavas, JK, granting bail to the respondent, namely Mohamed Suleman Ali .Alfa.n in an economic and organized crime case pending in a subordinate court for Dar es Salaam Region. The said Mohamed Suleman Ali Alfan st.-=inds ch8-rged with two counts, that is, Unlawful dealings in Government trophies contrary to paragraph 16(b) of the First Schedule of the Economic and Organized Crime Control Act No. 13 of 1984 read together with section 59 of the Act and section 65 of the Wildlife Conservation Act No. 16 of 1974 in the first count; and with Unlawful possession of Government Trophies contrary to _section 67(1) ,and (2)of the Wildlife Conservation Act No. 12 of 1974. The proceedings are still at a preliminary stage and are pending in the subordinate Court. On the 29th March 1989, the respondent, acting through his advocate, that is, Mr. Mohamed A.· Ismail, applied for b2il in the High Court at Dar es Sala.am, under the provisions of section 29(4) of the Economic and Org8.nized Crime Control Act, 1984. On the 3rd April 1989 1 the High C?urt, granted ba.H on the following terms: ••••• /2 " • 2 (i) The applicant to produce three·sureties who should each execute a bond to pay shs. 250,000,000/= in the event the applicant leaves the jurisdiction of the court; (ii) Each of the three sureties should own immovable property in Dar es sah.am and each should surrender his title deed to the Court; (iii) The 'accused to report to the Registrar, High Court, every Saturday of the ·r,eek at 9 A.M.; (iv) The accused to surrender to the police his passport and any other travel documents~ (v) The Accused is restricted to remain '.-1ithin the city of Dar es Salaam; ( vi) The accused himself to sign a bond of shs. 250,000,000/=. The D.P.P. was aggrieved by the terms upon which bail was gr8Jlted; hence this appeal to this Court. Mr. Mwanyika learned Principal Stqte Attorney represented the D.P.P. before us, ,-bereas Mr. Mohamed Ismail, learned advocde, assisted by Mr. Eric Ng 1 Ill9.rio, learned advocate, appeared for the respondent. Two grounds of appeal were filed by the D.P.P. in support of the appeal. The first one concerns an alleged failure to take into considerr,tion the 1 provisions of section 35(4)(a) of the Economic and Organized Crime Control Act, 1984 as amended by section 13 of the Economic and Organized Crime Control (Amendment) Act No. 12 of 1987 and section 148 of the &iminal Procedure Act, 1985. The second one is a complaint against an alleged failure by the High Court to consider the likelihood of th~ respondent jumping bail because of the seriousness of the chA.rge facing him. Early in the' hearing of this appeal, Mr. Mwanyika conceded th"'t the provisions of section 35 of the Economic and Organized Crime Control Act, 1984, do not apply to applic2,tions for ba.il made in the High Court. Obviously the relevant provisions are contained in section 29 of the Act as amended by Act No. 12 of 1987. I"lr. Mwanyika also conceded that the terms upon which bail may be granted by the High Court are st2ted under s~ction 148(6) and (7) of the Criminal Procedure Act, 1985 as amended by I Act No. 12 of 1987. • •... /3 . 3 Mr.· Mwanyika submitted before us th::i.t the High Court in imposing the conditions or terms upon ,_.,hich bail 1-ras gr.-mted ought to have included a condition requiring the respondent to make a c9sh deposit equal to half the value of the property involved in the offence ch::irged. With due respect to Mr •.. Mwanyika, we do not think that he is correct.. The requirement for a cash deposit is contained under sub-section 7 of section 148 ofthe Criminal Procedure Act, 1987 in a paragraph introduced by section 25 of ~e Economic and Organized Crime Control (Amen~ent) Act No. 12 of 1987 which reads: "where the offence for l..rhich the person is ch1.rged involves property whose V'.'1.lue exceeds ten million shillings re1uiring that ·the cash deposit equivalent to half the value of the . property be :p9,id and the rest be secured by execution of a bond." Undoubtedly, this requirement is one of the conditions .;hich a Court, 1 in its ·discretion granted by sub-section 7 of section 148 of the Criminal Procedure Act, 1985, may attach to a grant of bail, in addition to the mandatory conditions stated under sub-section (6) of the same section. It is •.1rong to say that the cash deposit is one of the mandatory conditions. · The learned Jaji Kiongozi cannot therefore ~ faulted for failure to order a cash deposit to be made. That however is not the end of the matter. With regsrd to the second ground of appeal, we have to consider whether the terms upon uhich the High Court granted bail are sufficient to ensure that the respondent uill not leave the jurisdiction of the Court. The learned Jaji Kiongozi seems to have been of the view that the requirements for three sureties each to execute a bond to pay shs. 250,000,000/= and to o,m immovable property in Dar es Salaam and the surrender of their title deeds to the. Court are sufficient assurance that the respondent will not leave the jurisdiction of the Court.· Unfortunately, the learned Jaji Kiongozi did not m2.ke directions to ensure that the immovable property concerned ,-rill be of such a re,.:,.sonab+e value, be;gring in mind the circwnstances of the case, that the respondent and his sureties will not take the risk of leaving the jurisdiction of the Court. .llJ3 matters stand, any immov::-, ble property of ,1hatever value, is acceptable ..... /4 .... . 4 provided it is loc:=ited in Dar es Salaam. We hci.ve had the advantage of examining the title deeds surrendered by the three sureties, that is, Suleiman ·Ali Ahmed Alfan, Abdu Salum Awadh and Sha.rif Nasir Maulana. On the face of it, they appe."'.r to rel8.te to immovable property of insufficient value. Two of them are .held on· 1 year to year Right of occupancy. The third, though held o~ a 33 years' tenure, is situated in a High density area - suggesting that it might not be of sufficient value to r~oti.'tt' the respondent from leaving the ju:tisdiction ·of the Court. For all these reasons, we are s..,tisfied tha.t the D.P.P. has made out a case for this Court to interfere ,.-iith the terms imposed ·by the High Court.· In order to ensure that the respondent is not easily tempted to jump bail, we are allowing the appeal by varying the second (Ii) and third (iii) conditions in the follouing manner: (i) Each of the three sureties should· oun immovable property with a separc',te value of at least 10,000,000/= for each surety to be determined in each case by the Government Valuer and each surety to surrende:J to the Court the respective title deed_. · (ii) The respondent to report to the Office~in-Ch~rge, Central Police Station three times a week that is, on Mo~~-a~~OOA.M; on Wednesday at 10.00 A.M. and Saturd2y at 10~.00,i~~~ r: .(;""- 0 - ,/r, '..,~\. For the avoidance of doubts, ue are directing t,~. ~{ ;~~:·'?-r:°,:e~-t~~~;·\ kept in remand custody until these terms concerning .irnmovribl~ pfbperty are./l 1 ~ ,} se..tisfied.' .· , . ..., t/ • DAT:@ at Dar es Salaam this 18th day of· April, ~~9>:~.:·~- ·~•.,;· _/. .'· ;··.' ,,. - ~ .,,~'-. ~·'1,/,. Vt t-l ;_;.:.,, ~~~~ F.. L. NYALALI ' CHIEF JUSTICE .- L. M. MAKA.ME JUSTICE OF APPEAL '\ ., A. M. A. OMAR.<-- JUSTICE OF APPEAL