kelvin rajabu ungele others vs republic 2017 tzhc 2034 6 march 2017

IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY) AT MTWARA CONSOLIDATED MISC. ECONOMIC CRIMES APPLICATIONS NOS. 1 AND 2 OF 2017 (Originating from Econom ic Crime Case N o .l of 2017 Masasi District Court at Masasi) KELVIN RAJABU UNGELE........................................1st APPLICANT LAWRENCE NJOZI.................................................2nd APPLICANT RAMADHANI YASSIN NAMAKWETO.........................3rd APPLICANT YUSUPH ATHUMAN NAMKUKULA............................ 4™ APPLICANT VERSUS THE REPUBLIC........................................................ RESPONDENT Date of last order: 15/02/2017 Date ofjudgment: 06/03/2017 RULING Twaib, J :-9 Z y 3 -y 3 QZ ‘ ( £ g 6 j ) . m / j o u y P U D isuDyi s ' N * u o s u a o j ^ u d p u v x d j y ( I ) Two applications for bail (Misc. Economic Crimes Appttee$3ffT1N<!>.o*:lP^#01^sfcy the 1st and 2nd applicants & Misc. E c o n o m i^ ^ i^ ^ ^ ^ ^ ^ ,^ ^ ,$ 1 7 by the 3rd and 4%agpfcuiis>iW9K&ilQi4g9<iijfi|i^® Cpuriopfibi$j<Q4>,/£i0il7»iurwter section 29 (4) (d) of the Economic and Organi^d,BCTftffe§n0ofltftfl ''Afct)* Cap. B pUB u9 3 J0 9 p „ B ISU jBSB |B9ddB JO }LjS|J B S3A|§ ^ 9 6 I SJJIIO 3 tS9JBJJS}3BJAl SL|J JO £ £ UO||D3S ( j) 200 (R.E. 2002) and section 148 (1) and (2) of the Criminal Procedure, Cap. 20 R.E. 2002, both praying for ordersptobtln&appiicpnitssbepi^leasedSQn HI 3 p B jS b j o jjn o o s q j ui S u ijB in S u o s sb o b uj *11103 q§|H s q i o j i q S n o jq sbm iBadclB q j j n o j S|qx 1 XjBuiuins s4JOjip3 bail pending trial in Economic Crimes Case No. 1 of 2017 pending committal proceedings at Masasi Dictrict Court. The applications are separately supported by affidavits sworn and affirmed by the applicants. Having noted that the two applications are substantially similar, this Court ordered them to be consolidated and dealt with as one application (for convenience, I will hereinafter refer to the two applications in singular form, as "the application"). In resisting the merits of the application, the respondent Republic has also raised a preliminary objection on point of law, notice of which was placed on record, challenging the jurisdiction of this Court to determine the application. At the hearing of the preliminary objection on 16th February 2017, Mr. Ladislaus Komanya, learned Senior State Attorney, appeared for the respondent Republic, while Mr. Majura Magafu, Mr. Rainery Songea and Mr. Msalenge learned Advocates, appeared for the 1st and 2nd applicants. Mr. Mahai, learned Advocate, appeared for 3rd and 4th applicants. The gist of Mr. Komanya's objection is in the provisions of section 8 of Act No. 3 of 2016, which amended the Economic & Organized Crimes Control Act, Cap. 200 (R.E. 2002), and established the Corruption and Economic Crimes Division of this Court ("the Economic Crimes Division" or "the Division"). Following the amendment, argued Mr. Komanya, section 3 (3) (a) of Cap. 200 sfanfri9'3arfefefDpar^^hl"!3‘j:t8M 2i;»i?7!id$93,sntjj 3su«p trow s c ta d y M K m >( M s s a id j^ ^ a ^ u iq jo u UjBjuoo ( l^ 6 | S9|try s js o 3 j o u o ;j b x b x p u s uojjBJ9unui3>i 4s3 jB 0 0 A p y s ip ) ssjru a q j,„ :pjes u n o o sq j i|oii|M ui (6 £ S I ‘( 6 3 6 1 ) ) p j v j 7Y IV H R P H U A 'A dl v ^!HD J ° 3SB0 °1 Ju sp ub d ssj 3i|j jo j jasunoo paujBSj Xq p sx ia jsj s b m j *oj p s j j s j s j s S u ip a s o o jd |BU[LUIJ0 s q j UI pSStlDOB 3q j ‘ iflUBQ J3SSBJs{ IjB p aiU B qO ^ 9UO }SUIB§B SB pSXBJ 3q OJ S9J|S9p 3}BJS9 aq j j o x u j n o s x s s q j qoiqM ‘j j n o 3 j o u j s ;a B iu op oQ s q j ui p jB sq 3 sbo jbu iu m jo b su aao u o o sjsod j o n ;q The learned Senior State Attorney explained that the application for bail before this Court relates to the second count in the charge (annexed in the affidavit) which falls under paragraph 10 (1) of the 1st schedule to the Economic and Organized Crime Control Act, Cap. 200 (R.E. 2002) as amended by Act No. 3 of 2016. In the 2016 amendments, section 8 repealed section 3 (1) of Cap. 200 and granted jurisdiction to the Economic Crimes Division. In the same amendments, the word "Court" is re-defined (under section 6 (a) of the Act) as "the Corruption and Economic Crimes Division of the High Court established under section 3". It was thus his view that, according to those amendments, the instant matter should be heard by the Economic Crimes Division. Counsel submitted further that before the establishment of the Division, section 29 (4) (d) of Cap. 200 granted jurisdiction to this Court to hear and determine such applications. But immediately after the establishment of the Division as a special division, section 8 of the 2016 Act amends section 3 (a) of Cap. 200, and empowers the Economic Crimes Division to entertain matters where the value involved is more than one TZS One Billion/=. There is no dispute that the case at Masasi involves a value of more than TZS 5 Billion/= which is within the jurisdiction of the Economic Crimes Division. Mr. Komanya went on submitting that rule 3 of GN 267 of 2016 defines the word "Division" as "the Corruption and Economic Crimes Division of the High Court". Rule 4 (1) provides for the establishment of a registry and sub­ registries of the Economic Crimes Division for the purposes of receiving and registering cases triable by the Division. Rule 4 (3) of GN 267 states that for convenience or other reason, the Court shall hold seatings at such other places as the Registrar may determine. Also, rule 6 states that any matter that is presented in the Economic Crimes Division of the High Court should have a specific title. It was Mr. Komanya's view that, if the applicants wanted to bring their application to the proper Court, they should have titled their application appropriately. Counsel also submitted that he is aware that the High Court has unlimited jurisdiction under Article 108 of the Constitution of the United Republic of Tanzania, 1977. Sub-article 2 of that article gives the High Court powers to hear any matter that the law does not specifically provide for. The article generally recognizes the existence of other legislation that vest jurisdiction on other forums. As for this matter, the law specifically provides for such jurisdiction and therefore, Mr Komanya submitted, the application is before the wrong forum, as there is a special division of the High Court that should deal with it. He supported his stand with the decisions in the cases of Ally Noor Dirie & Anor CAT (1988) TLR 259 and Jeremiah Madar Kerenge & Anor v. Republic, Misc. Economic Cause No.l of 2016. He concluded with the prayer that the instant application should be dismissed on grounds of lack of jurisdiction. Responding to the above submissions, Mr. Magafu conceded that the alleged loss in the substantive case is more than TZS One Billion. It is also not disputed that the principal Act ("Cap. 200"), has been amended and the amendments established the Economic Crimes Division. He however posed 4 the question: Where does the jurisdiction of the Division begin? When the accused is taken to a subordinate Court for committal proceedings, or after the committal proceedings, when the relevant information has been filed? Mr. Magafu's then offered his answer: It begins when the relevant information is filed after closure of committal proceedings. His reasoning is that under section 29 (4) (b) of the Economic and Organized Crimes Control Act, the High Court has jurisdiction to entertain bail applications because the amendment made in 2016 that established the Division did not amend section 29 (4) (d) of Cap. 200. Section 9 of the amending Act (No. 3 of 2016) has the marginal note "amendment of section 29". It amended sub-section 3. Also, subsections 7 and 8 were amended by incorporating the word "the Economic Crimes Division". By not amending sub-section 4, Mr. Magafu asserts, the legislature must have known that there are cases commencing in the lower Courts which would only go to the Economic Crimes Division of the High Court. He further submitted that in the case of Jeremiah Kerenge {supra), which was relied upon by the respondent's counsel, he stated that the presiding judge in that case found that there were anomalies in those amendments. Mr. Magafu distinguished Ally Noor Dirie's Case, also cited by the respondent's counsel, as irrelevant because it relates to a situation where the DPP's certificate is in question, which is not the case here. Mr. Magafu asserted that the legislature did not amend subsection (4) (d) of Cap. 200 purposely. The reason, according to him, was to let the ordinary High Court continue with jurisdiction to entertain applications such as the present, in order to allows accused persons to have easy access to bail. He also relied on Article 108 (2), which gives this Court general powers to entertain this application. Mr. Magafu's contention is that the jurisdiction of the ordinary registry of this Court to entertain bail application and, indeed, any interlocutory matter that may require the High Court's intervention shall only cease once the information is filed before the Economic Crimes Division. Before that happens, when committal proceedings are pending in subordinate Courts, the ordinary criminal High Court registry (save, of course, the special divisions of the Court, such as the Commercial, Land and Labour Divisions), can exercise jurisdiction. Mr. Magafu added that nothing in the Rules provides that an application for bail must be filed before the Economic Crimes Division. The Rules talk about "any information", and that Rule 4 of the Rules provides that a case is instituted when the information has been filed. In conclusion, Mr. Magafu submitted that the application is properly before this Court, and that the Court has powers and jurisdiction to entertain it. He prayed for the preliminary objection to be overruled, and the application for bail be heard on merits. Adding to the submission above, Mr. Mahai prayed for the Court to consider the charge sheet because the same does not cite "the new Act" (meaning Act No. 3 of 2016), and that only the old law has been cited. 6 In his rejoinder, Mr Komanya did not contest the argument by Mr. Magafu that section 29 (4) (d) has not been amended by Act No. 3 of 2016 which established the new Division of the High Court. He also did not contest the argument that the said provision gives this Court jurisdiction to entertain applications for bail. He however maintained that this Court has jurisdiction when sitting in its ordinary economic crimes jurisdiction, but drew a distinction in a case falling under section 8 of Act No. 3 of 2016, which has taken away that jurisdiction in respect of cases itemized in paragraph 10 (1) of the 1st Schedule to the Economic and Organized Crime Control Act, Cap. 200. As to the anomalies in section 29 of the Act as stated in Jeremiah Kerenge's Case, Mr. Komanya submitted that the correct interpretation of the provision is that which gives exclusive powers to the Economic Crimes Division of the High Court. He reminded the Court of Article 108 (2) of the Constitution which refers to "any other law". He contended that we do have such a law as far as the case at hand as concerned, which names the Economic Crimes Division as such Court. On the issue of failure to cite the new law in the charge sheet, Mr. Komanya referred the Court to section 29 (1) of Cap. 200. The section states that the charge filed in the lower Court is only a "proposed charge." He thus reiterated his earlier submission that this Court has no jurisdiction in terms of Act No. 3 of 2016 and the G.N. I propose to begin with a briefly discussion of this last issue raised by Mr. Mahai—regarding the failure to cite the new law in the charge sheet. I agree with Mr. Komanya that a charge read to the accused in committal proceeding is merely a proposed charge, and can be amended at any time during the committal proceedings and even when the information is filed. Besides, I am of the respectful opinion that the new law (as brought about by the 2016 amendments) does not establish new offences, neither does it amend any legal provision that creates an offence, such that it would need to be cited in any charge sheet that involves offences triable by the Economic Crimes Division. What is important, for the purposes of this case, is whether the offence indicated in the charge sheet falls within the jurisdiction of the Economic Crimes Division of the High Court in terms of section 3 (3) of Cap. 200 as amended by Act No. 3 of 2016. It is common ground that the applicants are charged with an Economic Crimes case at the District Court of Masasi, allegedly for causing loss of more than 5 billion shillings to a specified authority. The only contentious issue is whether this Court has jurisdiction to entertain the applicants' application for bail under section 29 (4) (d) of Cap. 200. Along with this issue the applicants' counsels has invited this Court to resolve the question, where does the jurisdiction of the Corruption and Economic Crimes Division of the High Court begin? When the accused is taken to a subordinate Court for committal proceedings, or after the committal proceedings and filing of the relevant information? If I got Mr. Magafu correctly, his argument is that, two registries of this Court have jurisdiction to entertain bail applications (and, by extension, any interlocutory matter) even in economic cases falling under the exclusive 8 jurisdiction of the Economic Crimes Division so long as the relevant information has not been filed in the Division. In other words, the exclusivity of the jurisdiction of the Division only takes effect once an information has been filed in its registry. That is his reason for the Legislature's decision, when enacting Act No. 3 of 2016, not to amend section 29 (4) (d) of Cap. 200. To Mr. Komanya, section 8 of Act No. 3 of 2016 has taken away that jurisdiction in cases falling within the jurisdiction of the Economic Crimes Division, and since this is one such case, this Court cannot exercise such jurisdiction. In my humble endeavour to resolve this interesting legal point, I will be guided by the principle of statutory interpretation articulated by the Supreme Court of India in the case of Prakash Kumar Prakash Bhutto v State of Gujarat [2005] INSC 35. It was held in that case as follows: "...no part o f a statute and no word o f a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in place. It is also trite that the statute or rules made thereunder should be read as a whole and one provision should be construed with reference to the other provisions consistent with the object sought." In our case the jurisdiction of the High Court in economic offences as provided for under section 3 (1) and (2) of the Economic and Organized Crime Control Act (Cap. 200 R.E. 2002) ("Principal Act") before the amendment by Act No. 3 of 2016 read as follows: 9 (1)The jurisdiction to hear and determine cases involving economic offences under this Act is hereby vested in the High Court. (2)The High Court when hearing charges against any person for the purpose o f this Act shall be an Economic Crimes Division. Moreover, the word "Court" under Cap. 200 before the said amendment was defined under section 2 to mean the High Court sitting as an Economic Crimes Division. Also, along with these sections, the High Court was vested with powers under section 29 (4) (d) of Cap. 200 to entertain bail applications where the value of any property involved in the offence is ten million shillings or more at any stage before the case is committed for trial before this Court. Hence, before the amendments, the determination of economic crimes cases was solely vested in the High Court sitting as Economic Crimes Division in terms of sections 2 and 3 of Cap. 200 or to the subordinate Court to the extent of the power conferred to it by the Director of Public Prosecutions in terms of section 12 of Cap. 200. Sections 2 and 3 of Cap. 200 were amended by the Written Laws (Miscellaneous Amendments) Act, 2016. Currently, section 3 of Cap. 200, as amended by Act No. 3 Of 2016 reads: 3 (1) There is established the Corruption and Economic Crimes Division o f the High Court with Registry and sub-registries as may be determined by the Chief Justice, in which proceedings concerning corruption and economic cases under this Act may be instituted. (2)....................................................... (N/A) 10 (3) The Court shall have jurisdiction to hear and determine cases involving: (a) Corruption and economic offences specified in paragraphs 3 to 21 and paragraphs 27, 29 and 38 o f the First Schedule whose value is not less than one billion shillings. Also, section 2 of Cap. 200 as amended by Act No. 3 of 2016 currently reads: "Court" means the Corruption and Economic Crimes Division o f the High Court established under section 3. Furthermore, as rightly submitted by the applicants' counsel, section 29 of Cap. 200 was also amended by Act No. 3 of 2016, but subsection 4 (a) - (d) of section 29 was not touched in those amendments. Thus, section 29 (4) reads: 4. After the accused has been addressed as required by subsection (3) the magistrate shall\ before ordering that he be held in remand prison where bail is not petitioned for or is not granted\ explain to the accused person his right if he wishes, to petition for bail and for the purposes o f this section the power to hear bail applications and grant bail- (a) .................................... ; (b) After committal o f the accused for trial but before commencement o f the trial before the Court, is hereby vested in the High Court; (c) After the trial has been commenced before the Court, is hereby vested in the Court; (d) In all cases where the value o f any property involved in the offence charged is ten million shillings or more at any stage li (3) The Court shall have jurisdiction to hear and determine cases involving: (a) Corruption and economic offences specified in paragraphs 3 to 21 and paragraphs 27, 29 and 38 o f the First Schedule whose value is not less than one billion shillings. Also, section 2 of Cap. 200 as amended by Act No. 3 of 2016 currently reads: "Court" means the Corruption and Economic Crimes Division o f the High Court established under section 3. Furthermore, as rightly submitted by the applicants' counsel, section 29 of Cap. 200 was also amended by Act No. 3 of 2016, but subsection 4 (a) - (d) of section 29 was not touched in those amendments. Thus, section 29 (4) reads: 4. After the accused has been addressed as required by subsection (3) the magistrate shall\ before ordering that he be held in remand prison where bail is not petitioned for or is not granted explain to the accused person his right if he wishes, to petition for bail and for the purposes o f this section the power to hear bail applications and grant baii- (3) ............................................ ; (b) After committal o f the accused for trial but before commencement o f the trial before the Court\ is hereby vested in the High Court; (c) After the trial has been commenced before the Court, is hereby vested in the Court; (d)0 In all cases where the value o f any property involved in the offence charged is ten million shillings or more at any stage li before commencement o f the trial before the Court is hereby vested in the High Court. As indicated herein the current definition of the word "Court" in terms of section 2 of Cap. 200 means the Economic Crimes Division established through the amendments of section 3 of Cap. 200 by section 8 of Act No. 3 of 2016. Hence, taking into consideration the current definition of the word "Court" under current law, the logical construction of section 29 (4) of Cap. 200 is that, for a matter that has been committed to the Court (the Economic Crimes Division of this Court) for trial but before commencement of trial, the granting of bail is vested in the High Court in terms of section 29 (4) (b) of the Act, regardless of the value. After commencement of trial in the Court, jurisdiction is vested in the Court (Economic Crimes Division) in terms of section 29 (4) (c) j of the Act, again regardless of the value. ^Section 29 (4) (d) of the Act j addresses all cases where the value of the property is TZS Ten Million or more at any stage the matter has reached but before commencement of the trial r before the Court (Economic Crimes Division) grant of bail is exclusively vested in the High Court. <r ” Mr. Magafu viewed that the omission to amend the provision had a purpose, namely, to enable the High Court to entertain bail applications before a case is committed for trial in the Economic Crimes Division. I agree with him in his construction, but I do not agree with him that section 29 (4) of the Act was not touched purposely. In my view the omission to amend section 29 (4) of the Act was inadvertent, as was similarly noted by Mkuye, J. (as she then was) 12 in Jeremiah Madar Kerenge & Another {supra). At page 11, the learned Judge noted: From the above this Court is in agreement with the submission by both Dr. Lamwai and Mr. Magafu learned advocates that the said section 29 (4) (d) of the EOCCA was not amended inadvertently.... Hence, far from being on purpose, Mr. Magafu himself submitted in Jeremian Kerenge that the omission was inadvertent. By taking section 29 (4) (a) - (d) of Cap. 200 as it is, it means that before commencement of the trial to the Economic Crimes Division of the High Court, the normal High Court registry shall have jurisdiction to entertain bail even where the value of money is more than one billion. Also, after trial has commenced at the Economic Crimes Division, jurisdiction to entertain bail is vested in that Court (the Economic Crimes Division) even where the value of money is below TZS One Billion/=. I am not convinced that that the legislative intent. Indeed, in my respectful view, the import of the amendments to section 3 (3) of Cap. 200 by Act No. 3 of 2016 is to abolish the Economic Crimes Division of the High Court as we knew it, and replacing it with the new Corruption and Economic Crimes Division, and, under subsection (4) to provide for the establishment of its separate registry and sub-registries. Therefore, a purposive interpretation of Act No. 3 of 2016 as a whole suggests that the amendments it brought to the fore were not intended to restrain the power of the Corruption and Economic Crimes Division of the High Court from entertaining bail applications, and neither were they intended to retain the 13 power of the ordinary registries of the High Court in entertaining such applications. Hence, section 29 (4) of Cap. 200 must be read together with section 3 (3) thereof, as amended by Act No. 3 of 2016. The result would be, in my considered view, that where the charge falls under the jurisdiction of the Economic Crimes Division of the High Court, in terms of section 3 (3) of the Act, a normal High Court registry cannot exercise jurisdiction under section 29 (4) (d) of the Act to grant bail. It is only where the offence does not fall under the jurisdiction of the Economic Crimes Division in terms of section 3 (3) of the Act, that an ordinary registry of the High Court can be moved to entertain bail applications under the section 29 (4) (d). To sum up the discussion, it is my considered opinion that the jurisdiction to entertain applications for bail in cases falling under the exclusive jurisdiction of the Economic Crimes Division of this Court (in terms of section 3 (3) of Cap. 200 as amended by Act No. 3 of 2016) is vested solely and exclusively in that Division, which no longer exists in the ordinary registries of this Court. In fine, I am constrained to sustain the respondent's preliminary objection, and to strike out the applicants' application due to want of jurisdiction. It is so ordered. DATED and DELIVERED at Mtwara this 06th day of March, 2017. F.A. Twaib Judge 14 06/ 03/2017 15