20161116 TZHC Dar es Salaam

. f' IN ·THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE CORRUPTION AND ECONOMIC CRIMES DIVISION.

AT DAR ES SALAAM REGISTRY MISC. ECONOMIC CAUSE NO. 01 OF 2016 (Originating from the Resident Magistrates' Court of Dar es Salaam at Kisutu in Economic Criminal Case No. 45 of 2016) 1. JEREMIAH MAD AR KERENGE ................................ 1 5 T APPLICANT 2. ALLY DAMJI RAZA ...................................... ~ ......... 2ND APPLICANT

VERSUS THE REPUBLIC ........................................................ RESPONDENT Date of Last Order: - 14/11/2016 Date of Ruling: - 16/11/2016

RULING R.K. MKUYE, J. This ruling emanates from a bail application through services of-CRAX Law Partners and M.R.M Latnwai & Co. Advocates for the 1st and 2 nd applicants respectively filed 6n 27/10/2016. The applicants herein seek indulgence of this Court to be released on bail regarding Economic Criminal Case No. 45/2016 currently pending for inquiry before Dar es Salaam Resident Magistrates' Court at Kisutu involving the 1st applicant (2 nd accused), 2nd applicant (3 rd accused) and one Fu Chang Feng (f st accused). In the said Economic Criminal Case No. 45/2016, the 1st and 2nd accused persons, that is, one Fu Chang Feng and 1st applicant respectively, are charged with importation of prohibited goods contrary to sections 146(a)(i) of the Customs (Management and Tariff) Act, [CAP. 403 R.E, 1 \ 2002] read together with paragraph l0(a) (sic) I think paragraph ll(a) of the First Schedule and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act, [CAP. 200 R.E, 2002] as amended by Act No. 3 of 2016 being 1st count involving 499 bags of monofilament net valued at Tshs. 7,485,000,000/=. Additionally, all the accused persons are charged with possession and storage of prohibited fishing gears contrary to regulation 66(1)(a) and ( 4) of the Fisheries Regulations, G.N. No. 308 of 2009 relating to storage of 325 bags containing 187 pieces of monofilament net valued

at Tshs: 15,193,750,000/= for 2nd count; and possession and storage of prohibited fishing gears contrary to regulation 66(1)(f) and ( 4) of the Fisheries Regulations G.N. No. 308 of 2009 involving storage of 50 bags containing 200 pieces of fishing gillnet valued at Tshs. 300,000,000/= for the 3rd count. The said application is made by chamber summons pursuant to section 29(4)(d) of the Economic and Organized Crime Control Act, [CAP. 200 R.E, 2002] referred to as the EOCCA as amended by Act No. 3 of 2016 and sections 148(1) and (4) of the Criminal Procedure Act, [CAP. 20 R.E, 2002] referred to as the CPA: The chaniber summons is supported by affidavits sworn and affirmed in person by the applicants respectively. Hearing of the bail application was conducted . orally whereas Mr. Timothy Vitalis, learned Principal State Attorney, appeared for the Respondent/Republic and Roman Selasini Lamwai, learned advocate, appeared for both applicants. Notably, Mr. Majura Magafu, advocate who initially appeared for and represented the pt applicant, did not enter 2 -, appearance in Court for undisclosed reasons. That notwithstanding, the 1st applicant having consulted Mr. Roman Selasini Lamwai who represented the 2nd applicant, it was agreed between the ist applicant and Mr. Roman Selasini Lamwai for him also to represent the 1st applicant. Addressing the bail application, Mr. Roman Lamwai

urged for the applicants' affidavits to form integral part of his submission. Mr. Lamwai added that, the 1st applicant's affidavit is to the effect that, his wife is pregnant, that is, an expectant and therefore the 1st applicant's presence is of important to take care of her. He added, the 1st applicant has a place of abode in Dar es Salaam and he is ready to comply with the bail conditions. On the part of the 2nd applicant, Mr. Lamwai submitted that, the applicant hails from Dar es Salaam and he is the only son to his parents who are totally dependent on him. Being a businessman with a permanent place of abode in Mnazi Mmoja, Dar es Salaam, his incarceration will cause untold hardship to his parents and certainly, wreck of his business. Moreover, the learned counsel submitted that the 2nd applicant is married and blessed with a son who is suffering from Tuberculosis (TB), hence he (the applicant) is the only person who has been looking after his treatment. He added that, the charged offences against the 2nd applicant do· not fall under economic offences. Mr. Lamwai thus urged for the applicants to be released on bail considering that the Republic/Respondent is not objecting the grant of bail. On his part, Mr. Vitalis submitted that, one, basically, the Republic did not file a Counter Affidavit as they did not dispute the asserted facts. 3 Two; the Republic is not objecting

grant of bail because the charged offences are bailable. Three, the applicants have stated in the affidavits, that they will comply with bail conditions to be imposed by this Court. However, Mr. Vitalis learned Principal State Attorney stressed compliance to section 36(5) of the EOCCA as amended by Act No. 3 of 2016 where the applicants are required to deposit half cash of the amount involved or property valuing at half of the subject matter. Mr. Vitalis thus argued that, since the total value is Tshs. 22,978,750,000/= and considering that the accused persons are three in number, applying the principal of sharing; each has to deposit cash sum or property valuing at Tshs. 3,829,791,666/= with addition of the conditions set under section 36(6) of the EOCCA. Regarding the 2nd applicant, Mr. Vitalis submitted that, the amount to be apportioned to the 2nd ·applicant will truly differ but arguing that, the 2nd and 3rd counts, being not e·conomic offences, will make no difference especially when read together with section 148(5) of the CPA. In rejoinder, Mr. Lamwai conceded that, the 1st count should not cover the 2nd applicant. Having considered the application at hand on one hand and the respective submissions by the applicants' counsel and the learned Principal State Attorney for the Respondent/Republic on the other hand, in unison, the following are the deliberations of this Court

in disposal. - Out rightly, since the Republic/Respondent is not objecting to the grant of bail and considering that the charged offences are bailable, there is no remaining point to delve in as to grant of bail. Despite that, two minor 4 ·, ' Jr·, ,i' { issues call determination, one, as to whether the charged offences fall, under mandate of this Court for bail application two, to what proportions, the applicants share the amount to be imposed in the bail conditions. Starting with the 1st minor issue, Mr. Lamwai learned counsel has argued that, the 2nd and 3rd counts in the charged offences currently pending in the subordinate· court for inquiry do not fall under economic offences, the imputation which was not rather objected by Mr. Vitalis learned Principal State Attorney. Understandably, in terms of the Schedule to the EOCCA under section· 57(1) of the EOCCA and the amendments to the Schedule per section 57(2) of the EOCCA, the two charged offences, that is, 2nd and 3rd counts· do not fall under the category of Scheduled offences. They do not fall under that category because offences under the Fisheries Regulations G.N. No. 308 of 2009 are not among the scheduled offences. It is in that lineage that the fact that the charged amount exceeds Tshs. 1,000,000,000/= cannot automatically confer jurisdiction to this Court. Jurisdiction of this Court is conditional in terms of

section 3(3) of EOCCA as amended by the Written Laws (Miscellaneous Amendments) Act, 2016, (Act No.3 of 2016) that is, one, they should be corruption and economic offences specified in paragraphs 3 to 21 and 27, 29 and 38 of the 1st Schedule where the involved amount is not less than one billion pursuant to section 3(3)(a) as amended by Act No.3 of 2016 and two,: economic offences specified under paragraphs 22 to 28, 30 to 37 & 39 of the 1st Schedule regardless of the value pursuant to section 3(3)(b) of EOCCA as amended by Act No.3 of 2016. Summarily, a pre-condition is set 5 that the same should be corruption and economic and economic offences, respectively. The only exception to' conferring jurisdiction to this Court involving non scheduled offences is when such other offences are referred to or instituted in the Court in terms of the provisions of the EOCCA. This is provided for under section 3(3)(c) of the the EOCCA as amended by Act, No.3 of 2016. The immediate question is, how can such other institutions or, references be made or m·et? Hurriedly, though not the only avenue, that caters to cover situations when the Director of Public Prosecutions exercises his powers in terms of section 12(4) of the EOCCA:- "The Director of Public Prosecutions or any State Attorney duly authorised 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 in·stituted or to be instituted before a court subordinate to the High Court and which involves a non-economic offence or both an economic offence and a non- economic offence, be instituted in the Court". Thus, though currently · the accused persons have not been committed to this Court for 'trial and considering that, from the involved amount, essentially, that the 2 nd and 3rd counts gives, are not economic offences, yet, this Court is a·ware of applicability of other avenues in arraigning the accused persons before this Court despite being non scheduled offences as detailed above under section 3(3)( c) of the EOCCA as amended by Act No.3 of 2016. 6 Such position of the law thus finds the argument by Mr. Lamwai that the 2nd and 3rd counts are not economic offences not meritorious in law thus un-maintainable. It thus follows that, the involved amount, being above ten million, bail application is vested to this Court for determination. Regarding the 2nd minor issue as to the proportions the applicants should share in the imposed bail conditions by this Court, as correctly submitted by Mr. Vitalis learned Principal State Attorney, in terms of section 36(5)(a) of the EOCCA, clearly, the law requires in mandatory terms for an applicant to deposit cash or other property, equivalent to half the amount or value of actual

money or property involved. As also correctly submitted by Mr. Vitalis, in the circumstances where the charged accused persons are more than one, definitely the applicable principle is that of sharing as was clearly demonstrated by the Court of Appeal in Silvester Hillu Dawi & Stephen Leons Mwambene vs. the Director of Public Prosecutions, Criminal Appeal No. 250 of 2006, (Unreported), (Dare es Salaam Registry) where the Court underscored that applicants have to share the burden as security, which I fully subscribe. Therefore, applying the principle of sharing, the amount due to the· 1st applicant in the involved counts, that is; 1st, 2nd and 3rd counts: 1st count:- 1,871,250,000/=; 2ng count:- 2,532,991,666.66/=; and 3rd count:- 50,000,000/=) is Tshs. 4,454,241,666.66/=. Thus, the 1st applicant should either deposit cash or properties worth Tshs. 4,454,241,666.66/=. 7 Regarding the 2nd applicant, the involved counts are the 2nd and 3rd counts: 2nd count:- 2,532,991,666.66/=; and 3rd count:-50,000,000/:=~=) making a total of Tshs. 2,582,991,666.66/=. Thus, the 2nd applicant should either deposit cash or properties worth Tshs. 2,582,991,666.66/=. Also in addition to the above, it is directed that: 1. Each applicant must produce two (2) reliable surities who should each execute a bond of the half the amount established above.

2. Each applicant should not leave Dar es Salaam City without a prior permission of the Resident Magistrate in charge of Dar es Salaam Resident Magistrates' Court at Kisutu.

3. Each applicant must surrender to the Bandari Police Station his passport and any other travelling document(s) he may be possessing.

4. Each applicant must report to the Bandari Police Station every Monday before 12:00 hrs (noon).

5. Each applicant tO appear before the Court on a specified time and place as scheduled by the Court. It is further ordered that:- 1. The applicants are to remain in custody until the terms concerning cash deposit or deposit of the Title Deeds of immovable properties are satisfied. Ownership of any property should be approved by the Commissioner for Lands and or the· Registrar of Titles (as the case may be) as well as their legal status regarding any encumbrances 8 I whatsoever including but not limited to caveats, mortgages and any ownership disputes in respect of any pending suit whatsoever.

2. The surities produced by each applicant must be approved by the Resident Magistrate in charge of Dar es Salaam Resident Magistrates' Court at Kisutu. By reliable sureties, it means a person who is in active public service.

3. The Resident Magistrate in charge of Dar es Salaam Resident Magistrates' Court at Kisutu must ensure that all bail conditions are accordingly implemented and met before releasing the applicants. r accordingly. R . K ~-z__

JUDGE 16/11/2016 Ruling delivered in chambers this 16th day of November, 2016 in presence of Mr. Roman Lamwai for the applicants and in presence of Mr. Timothy Vitalis for the respondent Republic. ~~ R.K. MKUYE

JUDGE 16/11/2016 9