20090925 TZHC Dodoma

IN THE HIGH COURT OF TANANIA

AT DODOMA (DC) CRIMINAL APPEAL NO. 137 OF 2008 (ORIGINAL CRIMINAL CASE NO. 4 OF 2008 KONG WA DISTRICT COURTA T KONGWA) THE DIRECTOR OF PUBLICP PROSEUTIONS ... APPELLANT Versus YUSUPH WILLIAM @ JOSEPH ) YUSUPH RAMADHAN @ KITAMBI) ...... RESPONDENT 19/081 2009 & 25/09/2009

RULING HON. MADAM, SHANGALI, J. This is an appeal by the Director of Public Prosecution intending to challenge the bail decision of the District Court of Kongwa in the Economic Case No. 4 of 2008. Before that District Court the respondents namely Yusuph William @ Joseph and Yusuph Ramadhan @ Kitambi have been charged jointly and together with two counts. The first count is conspiracy to commit an offence contrary to section 384 of the Penal Code, Cap 16 and the second count is interfering with necessary services contrary to section 20 (1), 2 and 3 (e) of the first schedule, Read together with section 23 (3), (8) and section 61 (1) (a) and (e) of the Economic and Organized Crime Control Act, Cap 200 R.E.

2002. On this second count it is 2 alleged that the respondents jointly and together did interfere and damage water pipes measured 80.99 feet valued at TShs.18,619,800/- the property of Kongwa District Council. On 6th November, 2008, the respondents applied for bail. There was no objection from the prosecution side but it reminded the trial District Court that the bail conditions should be in accordance with the provisions of section 36 (4) (e) of the Economic and Organized Crime Control Act, Cap 200 which covers Economic Cases. In his ruling dated 6th November, 2008, the trial District magistrate granted the bail application on two conditions namely:- Each accused to deposit TShs.1.O million in court. Each accused to execute bail bond on the sum of TShs.1.0 million with two sureties each in like sum. The appellant, Director of Public prosecution was not satisfied with the said bail conditions hence this appeal. On his single ground of appeal, the appellant who was represented by Mr. Mayeye, learned State Attorney stated that the trial District Magistrate erred in law for issuing conditions of bail in Economic Case contrary to the mandatory provision of section 36 (4) of the Economic and Organized Crime Control Act Cap 200, R.E. 3 2002. He strongly submitted that section 36 (4) (e) provide that the court shall not admit any person to sail if the offence for which the person is

charged involves property whose value exceeds ten million shillings, unless that person pay cash deposit equivalent to half the value of the property, and the rest is secured by execution of a bond. Mr. Mayeye, Learned State Attorney argued that the value involved in the present case is TShs.18,619,880 the property of Kongwa District Council. Therefore half value of that amount is TShs.9.5 million, and that is exactly the amount which should have been deposited in cash in court. He contended that, the trial District Magistrate was wrong to allow bail to the respondents on conditions of depositing cash one million shillings. Mr. Kidumage, learned Advocate who appeared for the respondents started to challenge the whole appeal by stating that bail order is an interlocutory order which is not appellable. On the main ground of appeal, the learned advocate submitted that the trial District Magistrate granted bail basing on section 36 (4)(e) of the Economic and Organized Crime Control Act and Section 148 (5) of the Criminal procedure Act, 1985. He insisted that bail is a right of the accused person and the accused's duty is to make sure that he complied with bail conditions and appear before the court until the end of his case. 4 First and foremost, a decision on bail is not one of the interlocutory orders prohibited from appeal. Bail order is appellable because it finally determine

totally and completely the rights of the accused pending the determination of his matter in court. Secondly, the position on bail conditions in cases filed under Economic and organized Crime Control At, Cap 200 has now been settled. Section 36 (4) (e) subsection (5) of the Act speak for itself, that where the offence for which the person is charged involves property whose value is ten million shillings or more, the court shall require cash deposit equal to half the value be paid and the rest be secured by execution of a bond-see also the decision of the Court of - Appeal of Tanzania in the cases of Rep vs. Salama Shite Criminal Appeal No. 102/2003, Dar es Salaam Registry (unreported) and Gaudence Mapunda and 3 others vs. Republic - Criminal Revision No. 1 of 2002 Dar es Salaam Registry (unreported). That being the position, the starting point is the proposition of payment of cash deposit equal to half the value involved. However, following the decision of the Court of Appeal in the case of Silvester Hillu Dawi and another vs DPP - Criminal Appeal No. 250 of 2006 Dar es Salaam Registry (unreported) which introduced the sharing principle, the accused persons have a duty to share the burden. Meaning that the said half the value involved should be equally divided among the number of the accused 5 persons involved - see the case of Aidan Tangasa Mgonela and two others vs Republic -

misc. Criminal Application No. 10/2001 HC Dodoma (unreported). In our present case the half of the amount involved is TShs.9,309,940/= divided by 2 (accused persons/respondents) is equal to TShs.4,654,9970/=. Therefore the respondents were each required to pay cash deposit TShs.4,654.970/= in court followed by other conditions. In conclusion therefore this appeal is allowed. The bail condition imposed by the trial District magistrate in his order dated 6th November, 2008 is hereby vacated. Instead the respondents/accused persons are granted bail on the following conditions: - Each accused person to pay cash deposit in court TShs.4,654,970/=. Each accused to execute bail bond in the sum of TShs.5,000,000/- with two sureties each in the like sum. The two sureties to be approved by District Magistrate in-charge of Kongwa District Court. The accused persons are barred from traveling out of Dodoma Region without a prior permission of the District Magistrate in-charge of Kongwa District Court. it is so ordered. MS.S, ALI

JUDE 25/09/2009 Ruling delivered todate 28th September, 2009 in the presence of Mr. Wambali, Learned State Attorney for the Respondent/Republic and Mr. Njulumi, Learned Advocate for the respondents. d-r Oz \\ A', fE 12, : J)JM.S.S Ll

JJ JD -- /1 25/09/2009