CRIMINA APPLICTION NO 73 01 OF 2022 JOVINA DAMIAN JAMES ANOTHER VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: SEHEL. 3.A.. KENTE, 3.A., And MASOUP. J.A.) CRIMINAL APPLICATION NO. 73/01 OF 2022 JOVINA PAM IAN JAMES............................... ............................. 1st APPLICANT GU KAI............................................... ........ ..............................2nd APPLICANT AND THE REPUBLIC....................... ................................................... RESPONDENT (Application for review from the decision of the Court of Appeal of Tanzania at Par es Salaam) fMkuve. Kente. and Kihwelo, JJA.) dated the 19th day of October, 2022 in Criminal Appeal No. 547 of 2021 RULING OF THE COURT 5th & 22nd February, 2024 MASOUD. J.A.: In the Court of Resident Magistrate at Kisutu, Dar es Salaam in Economic Case No. 20 of 2016, the applicants were jointly charged with offences comprised in six counts. They were conspiracy to commit an offence contrary to section 384 of the Penai Code, Cap. 16 R.E 2002 (the Penal Code), forgery contrary to sections 333, 335(a) and 337 of the Penal Code, uttering false document contrary to section 342 of the Penal Code, obtaining registration by false pretence contrary to section 309 of the Penal Code, and occasioning loss to specified authority contrary paragraph 10(1) of the First Schedule to and section 57(1) and 60(2) of the Economic and Organised Crime Control Act, [Cap.200 R.E 2002 now R.E 2022] (EOCCA). The offences were committed by the applicants at Iiala District within Dar es Salaam between 21st October, 2014 and 30th March, 2016 after fraudulently obtaining an electronic fiscal Device (EFD machine) from Tanzania Revenue Authority (TRA) on 21st October, 2014. Having fraudulently obtained such device, they caused TRA to suffer a total lossofTZS. 1,776,693,465.00. At the end of the trial, the appellants were convicted of the offences, save for the offence of conspiracy, which was not established by the prosecution. The appellants were as a result sentenced by the trial court to a concurrent term of seven (7) years imprisonment as well as to pay TZS. 1,776,693,465.00 as compensation to the Government. The first appellate court upheld both the conviction and sentence. The foregoing is evident at page 2 of the judgment of this Court in Criminal Appeal No. 547 of 2021. In the applicants' second appeal to this Court, the sentence of seven (7) years term of imprisonment was enhanced and replaced with a term of imprisonment of twenty (20) years. In imposing the enhanced sentence, this Court was persuaded by the submission by the respondent Republic that the trial court wrongly imposed the sentence of seven (7) years for the offence of 2 occasioning loss to a specified authority contrary to paragraph 10(1) of the First Schedule to and section 60(2) of the EOCCA. In their notice of motion which instituted this application, the applicants sought a review of our own decision in Criminal Appeal No. 547 of 2021 on a number of grounds. Indeed, the grounds were indicated in the body of notice of motion and in the applicants' averments in their supporting affidavits. When the application was called on for hearing, Mr. Nduruma Majembe, assisted by Mr. Deusdet Luteja, both learned Advocates, represented the applicants, whereas Ms. Christine Joas, learned Senior State Attorney, appeared for the respondent Republic. Mr. Ernest John Mateza, was also present as a Court interpreter from Kiswahili to Chinese and vice versa. However, the interpreter was not used, as the second appellant confirmed to the Court that he could very well follow the proceedings in English. Mr. Deusdet Luteja argued only one ground from the list of the grounds indicated in the notice of motion and in the affidavits in support, whilst abandoning the rest with the leave of the Court. The ground that was argued for the purpose of the sought review was on the validity of the sentence of imprisonment for a term of seven (7) years imposed by the trial court on the applicants which was in their view wrongfully substituted by this Court for a 3 term of twenty (20) years contrary to the law in the sixth count of occasioning loss to a specified authority. His submission was in a nutshell to the effect that the decision by this Court to increase the sentence from a concurrent term of seven (7) years imprisonment imposed by the trial court to a term of twenty (20) years infringed Article 13(6)(c) of the Constitution of the United Republic of Tanzania and did not consider that the offence was committed between 21st October, 2014 and 30th March, 2016 before the amendment of section 60(2) of the EOCCA. In other words, the amended provision of section 60(2) of the EOCCA was not applicable to the applicants because the provision was not in existence when the applicants committed the offences. To buttress his submission, Mr. Luteja pointed out that while the offence of occasioning loss to a specified authority was committed between 21st October, 2014 and 30th March, 2016, the amendment of section 60(2) of the EOCCA came into force on 8th July, 2016 which is after the commission of the said offence. It was clarified that the amendment was effected by the Written Law (Miscellaneous Amendments) (No.3) Act, 2016 (the amending Act) which was assented to by the President on 7th July, 2016 and published in the Government Gazette on 8th July, 2016. He clarified further that the amendment of section 60(2) by section 13 of the Amending Act provided for a minimum sentence of imprisonment for a term of "not fess than twenty years but not exceeding thirty yeard', whilst before its amendment the provision of section 60(2) prescribed a lesser sentence of imprisonment for a term "not exceeding fifteen year£\ It was, therefore, argued that the amended provision which was used by this Court to increase the sentence of imprisonment from a term of seven (7) years imposed on the applicants by the trial court to a term of twenty (20) years could not in terms of article 13(6)(c) of the Constitution apply retrospectively to the offence committed by the applicants before the amendment of the relevant provision of section 60(2) of the EOCCA. For a better appreciation of the argument by the learned advocate in relation to the provision of Article 13(6)(c) of the Constitution, we find it important to reproduce the provision. It reads: "No person shaii be punished for any act which at the time o f its commission was not an offence under the iawf and also no penalty shall be imposed which is heavier than the penalty in force at the time the offence was committed". [Emphasis added] In line with the above, our attention was drawn to the case of Magoiga Magutu@Wansima v Republic, Criminal Appeal No. 65 of 2015 (unreported) where the provision of Article 13(6)(c) of the Constitution was invoked in favour of the prohibition of imposing a heavier punishment which was not in existence when the appellant committed the economic offence he was convicted of. In that case, we held that as it is prohibited by the provisions of Article 13(6)(c) of the Constitution, it was not proper for the courts below to impose on the appellant a heavier sentence than the one that was existing when he committed an act constituting an economic offence. It was submitted that since by virtue of Article 13(6)(c) of the Constitution this Court is prohibited to impose a heavier sentence on the applicants than the one which was existing between 21st October, 2014 and 30th March, 2016 when the applicants committed the offence, it was not proper for this Court to invoke the amended provision to substitute the lesser sentence of imprisonment imposed by the trial court on the applicants for a heavier sentence of imprisonment for a term of twenty (20) years as it did. It was also submitted that, since the sentence was substituted and enhanced as result of the complaint by the respondent Republic on the validity of the sentence imposed by the trial court, which complaint was not cross-appealed upon by the respondent, there was not only an error on the face of record resulting in miscarriage of justice in sentencing the applicants contrary to the prohibition of Article 13(6)(c) of the Constitution, but also there was deprivation of an opportunity to be heard as the applicants were on their part denied opportunity to prepare themselves against the complaint. On the strength of the above arguments, the applicants' advocate urged us to find in favour of the applicants that the error is within the scope of rule 66(1) of the Tanzania Court of Appeal Rules, 2009 as amended (hereinafter the Rules) and in particular sub-rule (l)(b) and (c) under which the application was predicated and that the error has been duly established. Initially, Ms. Joas, learned Senior State Attorney, commenced her submission in reply by arguing that the application is misconceived as it does not fall within the purview of rule 66(1) of the Rules. However, upon being probed by the Court on the position of section 60(2) of the EOCCA before and after the amendment and the timing of the commission by the applicants of the act constituting economic offence, she was on reflection quick to change her stance. As a result, she agreed with the learned advocate for the applicants that it was not proper for this Court to invoke the amended provision of section 60(2) of the EOCCA to substitute the lesser sentence of a term of imprisonment of seven (7) years imposed by the trial court on the applicants for a heavier sentence of a term of imprisonment of twenty (20) years whilst the act constituting the offence in respect of which the applicants were convicted of was committed before the amendment of section 60(2) of the EOCCA came into force. We understood that the learned Senior State Attorney had no quatms with the merit of the application. As we indicated herein above, the application was predicated under rule 66(l)(b) and (c) of the Rules. It asks the Court to review its decision in Criminal Appeal No. 547 of 2021 that increased the sentence of imprisonment from a term of seven (7) years to a term of twenty (20) years. The relevant provision under which the application was made reads thus: "66(1) The Court may review its judgment or order, but no application for review shall be entertained except on , the following grounds- (a)The decision was based on a manifest error on the face o frecord resulting in the miscarriage ofjustice; (b) A party was wrongfully deprived o f an opportunity to be heard; (c) The Court's decision is a nullity; or (d) The Court had no jurisdiction to entertain the case; (e) The judgment was procured illegally, or by fraud or perjury". It is settled that the scope of powers of this Court under the above provisions is limited within the grounds set out under the sub-rule (l)(a) —(e) and within the decision of this Court sought to be reviewed. We also 8 understand that for an error to amount to a ground of a review, it must be an obvious and patent error which results in a miscarriage of justice. See, Chandrakant Joshubhai Patel v. Republic [2004] T. L. R. 218. We are thus in our determination bound to confine ourselves within the indicated parameters. The question is whether the error envisaged in the notice of motion and the affidavits in support is established and can sufficiently ground a review of the impugned judgment within the scope of rule 66(1) of the Rules. We quickly looked at the judgment sought to be reviewed as we reflected on the breadth of the learned advocate's submission. We had no difficulties in finding that at page 2 and 3 of our judgment in Criminal Appeal No. 547 of 2021, we were on the record that the offences which the applicants were charged with and convicted of were committed between 21st October, 2014 and 30th March, 2016. It is obvious in the same judgment that the applicants were also convicted of the offence of occasioning loss to a specified authority contrary to paragraph 10(1) of the First Schedule to and section 60(2) of the EOCCA as was pointed out above and were, inter alia, sentenced by the trial court to serve a term of imprisonment of seven (7) years, which was also upheld by the High Court as the first appellate court. It was again not hard for us to see, with ease, that at page 10 of the judgment sought to be reviewed, this Court considered the submission by Ms. Mwasiti Athuman Ally, learned Senior State Attorney for the respondent Republic, on a complaint she raised at the hearing in this Court, as she was submitting in reply on the applicants' grounds of appeal, that the sentence of imprisonment for a term of seven (7) years imposed on the applicants by the trial court was inappropriate as it was not consonant with the penalty prescribed under section 60(2) of the EOCCA, The learned Senior State Attorney is evident on the record at page 10 of the judgment urging the Court to enhance the sentence imposed by the trial Court in accordance with the appropriate penalty prescribed under section 60(2) of the EOCCA. It is glaring that the learned Senior State Attorney's submission on the validity of the sentence imposed by the trial court and her prayer for enhancement of the sentence were both hinged on the position of the amended provision of section 60(2) of EOCCA which came into effect on 08th July 2017 after the offences the applicants were convicted of had already been committed between 21st October, 2014 and 30th March, 2016. It is, however, not on the record that the Court was addressed on the issue whether the position of the amended provision of section 60(2) of the EOCCA which came into force on 08th July 2017 was retrospectively applicable to the acts constituting economic offences that the applicants committed between 21st October, 2014 and 30th March, 2016 before the amendment of the provision. It is self-evident at page 24 of the impugned judgment that as it was deliberating on the issue of validity of the sentence, the Court invoked the amended provision of section 60(2) of the EOCCA which increased the severity of the sentence of imprisonment to be imposed on a person convicted of economic offence from "a term not exceeding fifteen yearsV which was the punishment under section 60(2) of the EOCCA before the amendment up to a term o f not less than twenty years but not exceeding thirty year& which is the punishment prescribed by the said provision after the amendment. It is equally clear in the judgment that the Court did not consider whether the position of the amended provision of section 60(2) of the EOCCA which it invoked was applicable in sentencing the applicants who were convicted of the economic offences they committed before the provision was amended. Having invoked the amended provision without considering when the applicants committed the offence, from page 24 up to 25 of the typed judgment, the Court said that: ii "Mr. Ally's submission on this issue is based on the position o f the law under section 60(2) o f the EOCCA which requires that, a person convicted with an offence which is provided under the EOCCA and other written law, unless the penalty in that other law is greater than that which is imposed under the EOCCA, the latter will prevail. The learned Senior State Attorney was undeniably right to submit that, the trial court wrongly imposed the sentence o fseven (7) years for the offence o f occasioning loss to a specified authority contrary to paragraph 10(1) o f the First Schedule to and section 60(2)of the EOCCA. For clarity, section 60(2) o f the EOCCA provides as follows: "Notwithstanding provision of a different penalty under any other law and subject to subsection (7), a person convicted o f a corruption or economic offence shall be liable to imprisonment for a term o f not less than twenty years but not exceeding thirty years, or to both such imprisonment and any otherpenal measure provided for under this Act. Provided that, where the law imposes penal measures greater than those provided by this Act, the Court shall impose such sentence." Clearly, the provision cited above is unambiguous, and in our considered opinion, the learned Senior State 12 Attorney was undeniably right in her submission, since the appellants were found guilty and convicted o f an economic offence.... they were liable for a greater penalty than the one imposed by the trial court We, on our part, think the trial court wrongly resorted to the milder sentence o f seven years while the minimum sentence for that count under the provision o f section 60(2) o f the EOCCA is twenty years. We thus invoke our powers under section 4(2) o f the AJA, and quash the sentence in the sixth count We substitute in lieu therefor, a sentence o f twenty years imprisonment for the sixth count". [Emphasis added] The above excerpt is seif-evident of the error and the resulting injustice in sentencing the applicants; regard being had to not only the position of section 60(2) of EOCCA before it was amended by Act No.3 of 2016, but also the period when the acts constituting the economic offence were committed which corresponds with the position of section 60(2) of the EOCCA before the amendment, and the prohibition to impose a heavier sentence than one in force at the time the offence was committed as required by Article 13(6)(c) of the Constitution. We posed at this juncture, as we sought guidance from Chandrakant Joshubhai Patel (supra), and continued to wonder as to whether there is, 13 indeed, an error capable of grounding a review, over which there is no dispute, and which resulted in the judgment which is sought to be corrected by review as a matter of justice. In our indulgence, we think that it is prudent now to revert to ingredients of an error which may ground a review in relation to the instant application and our findings in relation to the error as portrayed by the learned advocate and as is evident on the record before us. First and foremost, there is, obviously, an error existing on the record which has nothing to do with interpretation of the provision that may have a set of different opinions. As such, it is possible in our view for one who runs and read to see that the invoked provision prescribes a heavier sentence than what was imposed by the trial court and that no consideration was made as to the law in force when the applicants committed the offence. Second, the error on the record is, in our clear view, not only undisputed but it is also manifest on the face of the record of the impugned judgment as already shown herein above. And finally, the error has, undoubtedly, resulted in miscarriage of justice in sentencing the applicants. We say so because the error has as a result led to sentencing the applicant to a term of twenty (20) years contrary to Article 13(6)(c) of the Constitution and notwithstanding that the applicants committed the offences before the amendment of section 60(2) 14 of the EOCCA that introduced a heavier sentence of "a term o f not less than twenty years but not exceeding thirty yearf. Since the decision of this Court that enhanced the sentence imposed by the trial court on the applicants proceeded on the basis of the amended provision of section 60(2) of the EOCCA which ought not to have been invoked by virtue of Article 13(6)(c) of the Constitution, we are certain that the Court would not have decided as it did were that provision not invoked on the record, but the provision prescribing a lesser sentence that existed before the amendment. We are in this respect guided by our earlier decision in Chandrakant Joshubhai Patel (supra) in which we cited with approval the decision of this Court in Felix Bwogi v Registrar of Buildings, Civil Application No. 26 of 1989 (unreported) which dealt with a situation akin to one pertaining to the instant application. In that case (Felix Bwogi), a document withdrawn at the trial court found its way into the record of appeal. As a result, the judgment of the Court proceeded on the basis of that document. The Court granted the application for review. It reversed its earlier decision. The exercise, according to Chandrakant Joshubhai Pate!, amounted to a review of the Court's decision although given what existed than the Court only considered itself to be acting 15 pursuant to its powers of correcting clerical mistakes or errors arising from accidental slips or omissions. As earlier shown, the applicants predicated the application on sub-rules 66(1) (b) and (c) of the Rules, which would imply that the applicants were wrongly deprived of an opportunity to be heard and that the decision sought to be reviewed is a nullity. There was also endeavours in the applicants' submission to show how they were deprived of an opportunity to be heard when the respondent's complaint on the validity of sentence imposed by the trial court was argued although it was not a subject of a cross-appeal by the respondent. All the same, since the applicants were given opportunity to respond to the submission by the learned Senior State Attorney, we think there is hardly a space to raise a ground under rule 66(l)(b) that the applicants were deprived of an opportunity to be heard on the complaint. Likewise, materials availed in the affidavits in support as well as in the uncontested submission do not correspond with rule 66(l)(c) of the Rules to sufficiently ground a review on the ground that the Court's decision is a nullity. See, M/S Serengeti Road Services v CRDB Ltd, Civil Application No. 12 of 2011 in relation to what it takes for a decision to be a nullity. 16 We, however, think that the error so far established is so obvious, patent and self-evident in the impugned judgment that it does not require an elaborate argument or long drawn process of reasoning to reveal it. The error is expressly stated under paragraphs 8 and 9 of the respective affidavits in support and was not opposed by the respondent Republic in any way. We are certain that the error as elaborated herein and averred in the affidavits in support discloses a manifest error on the face of the impugned decision under rule 66(l)(a) as opposed to rule 66(l)(b) and (c) under which the application was made. Thus, in terms of rule 48 of the Rules, we resolved to ignore the omission by the applicants to cite rule 66(l)(a) of the Rules on manifest error on the face of record resulting in the miscarriage of justice. We would instead read the provision into the application which in our view described the error in a manner that befits the purview of the provision of rule 66(l)(a) of the Rules. We did so as the Court has jurisdiction to grant the orders sought. Having considered the error as afore said, we thus find that the applicants have made a case for the review of the judgment of this Court in Criminal Appeal No. 547 of 2021 in terms of rule 66 (1) (a) of the Rules. In the result, we allow the application for the reasons already stated. We invoke our powers under section 4(4) of the Appellate Jurisdiction Act, Cap. 17 141 and rule 66(l)(a) of the Rules. We reverse the sentence of imprisonment for a term of twenty (20) years imposed by this Court and substitute it for the sentence of imprisonment of a term of seven (7) years which was imposed by the trial court in the sixth count and upheld by the High Court. For avoidance of doubt, the previously meted out sentences in other counts and the order to pay TZS. 1,776,693,465.00 remain undisputed. It is so ordered. DATED at DAft ES SALAAM this 20th day of February, 2024. B. M. A. SEHEL 'JUSTICE OF APPEAL P.M. KENTE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The ruling delivered this 22nd day of February, 2.024 in the presence of the 1st and 2nd applicants in person and in the presence of Ms. Salma Jafari Learned State Attorney for the respondent/Republic is hereby certified as a true copy of the original. O . h . MIMVj VVCLC DEPUTY REGISTRAR COURT OF APPEAL 18