dpp vs nasibu juma 2023 tzhc 16424 31 march 2023

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF DODOMA AT DODOMA CRIMINAL REVISION NO. 08 OF 2022 DIRECTOR OF PUBLIC PROSECUTIONS......... ....... ..APPLICANT VERSUS NASSIBUJUMA................................ RESPONDENT (Arising from the Ruling of Dodoma District Court, Mayumba, RM) Dated 06th of May, 2022 In Economic Case No. 15 of 2021 RULING 01st March 8131st March,2023 MDEMU, J:. This revision has been preferred by the Applicant Director of Public Prosecutions against the decision of District Court of Dodoma in Economic Case. No. 15 of 2021 presided by Mayumba, Resident Magistrate. Briefly, the Respondent appeared before Dodoma District Court in Economic Case stated above, where he was charged with two counts. The first count, involved stealing by agent contrary to section 258(1) and 273 (d) of the Penal Code, Cap. 16. It is alleged that on diverse dates between July, 2020 and October 2020 within the District of Dodoma being a i supervisor at Step Telecom Services (Vodashop), the Respondent did steal a total sum of Tshs. 44,050,000/- entrusted to him by one Stephen Lyimo, the owner of the said Vodashop for the purpose of conducting business and deliver profit. The second count concerns money laundering contrary to section 12(b) and 13 (a) of the Anti-money Laundering Act, No. 12 of 2002 read together with paragraph 22 of the First Schedule to and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act, Cap. 200, RE 2019. The particulars alleges that, on the same date and place the Respondent converted part of Tshs. 44,050,000/= stolen from Stephen Lyimo to build a house in his unsurveyed plot situated at Miyuji area in Dodoma. At the time of building the said house, according to the particulars of offence, he knew or ought to know that the money used was proceeds of predicate offence namely stealing by agent. According to the record, on 21st of December, 2021, Mr. Emmanuel Bwire, learned Advocate representing the Respondent raised a preliminary objection before Mayumba, RM stating that, in the first count the particulars and its contents are defective for not indicating the principal­ agent relationship. In reply to such objection, Mr. Hatibu, learned State Attorney representing the Applicant DPP stated that, the Court had no jurisdiction to determine the objection/ rather the High Court, Economic Division as per section 3(1) of Economic and Organised Crime Control Act, Cap. 200 (EOCCA). The Dodoma District Court sustained the objection thus dismissed the 1st count for want of expressing principal-agent relationship. Hence, this application by the Republic requiring this Court to look at the legality of the ruling issued by Mayumba, RM. On 1st March, 2023 I heard the parties. The Applicant was represented by Mr. Kidando, State Attorney and the Respondent was represented by Mr. Elias Machibya and Catherine Wambura, learned Advocates. Mr. Kidando submitted that, the Court erred in entertaining the objection for want of jurisdiction as the cha rge had two counts, one being economic offence, the Court couldn't have proceeded to do anything in respect of the charge before certificate and consent of the Director of Public Prosecutions got filed. He said that, section 3 of EOCCA, provides that, the High Court is the one conferred with jurisdiction to hear economic cases. He said that, Section 26 of the same Act confers powers to a subordinate Court upon issuance of consent and certificate of transfer. In his view, since certificate and consent was not filed, the objection was wrongly determined. Supporting his Submissions, he cited the cases of Matongo Chacha Mwita vs. R, Criminal Appeal No. 528 of 2017, Kulwa Limbu Musha vs. R, Criminal Appeal No. 279/2018 and Peter M sum be and Another vs. R, Criminal Appeal No. 168 Of 2020 (all unreported). In reply, Mr. Machibya conceded that, consent and certificate was not filed when the objection was determined. However, he argued that, the charge on the first count was defective as it does not contain the element of principal-agent relationship. He also said that, under section 132 of Criminal Procedure Act, Cap. 20, a subordinate Court has jurisdiction to determine if the charges are proper or not. He therefore argued that, the preliminary objection was properly entertained by Mayumba, RM. In rejoinder, Mr. Kidando reiterated his submissions in chief. I have carefully gone through the records and submissions of both parties. The issue to be determined is whether Dodoma District Court had jurisdiction to determine the preliminary objection raised on the first count facing the Respondent in a charge containing two counts, one of which being an economic offence. The trite position with respect to jurisdiction in this country is firmly settled. It is to the effect that, Courts must understand the scope of their 4 powers and that discharge of their judicial functions must be within the confines of such powers. It is risky and unsafe for the Court to proceed on the assumption that it has jurisdiction to adjudicate the case. See the case of Fanuel Mntiri Ng'unda vs. Herman M. Ng'unda, Civil Appeal, No. 8 of 1995(unreported). It is true that, jurisdiction to try economic offences is vested in the Corruption and Economic Division of the High Court in terms of section 3 of the EOCCA. However, subordinate Courts may be conferred with jurisdiction to try such offences by consent of the DPP issued under section 26(1) of EOCCA and certificate of transfer issued in terms of section 12(3) of EOCCA. For clarity the two provisions are quoted as hereunder respectively S. 26(1) - Subjectto the provisions of this section no trial in respect of an economic offence may be commenced under this Act save with the consent of the Director of Public Prosecutions. S. 12(3)- The Director of Public Prosecutions or any State Attorney duly authorized by him, may, in each case in which he deems it necessary or appropriate in the public interest, by certificate under his hand order that any case involving an offence triable by the Court under this Act be tried by such Court subordinate to the High Court as he may specify in the certificate. Back to the case at hand, consent of the DPP and certificate of transfer was not filed to Subordinate Court (Dodoma District Court). Also, since the Respondent is charged with both economic and noneconomic offence, the two offences cannot be separated and therefore even the correctness of charge in respect of the first count of economic offence was to be determined upon the Court being conferred with jurisdiction. It was wrong therefore for the learned trial Resident Magistrate to proceed determining the objection through exploration of the legality of the charge without jurisdiction to do so. Consequently, I invoke revisionally powers under section 372(1) of Criminal Procedure Act, Cap. 20 to nullify the proceedings and ruling of the District Court of Dodoma in respect of the defectiveness of the charge in the first count facing the Respondent. The file is thus remitted to the District Court of Dodoma to proceed with trial of the Respondent in accordance with the Law. It is so ordered. Gerson jTMdemu JUDGE 31/03/2023 6 ' DATED at DODOMA this 31st day of March, 2023 -----Gerson J. Mdemu JUDGE 31/03/2023 7