mohamed yahya mohamed laizer vs republic 2018 tzhcced 16 11 april 2018

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA

THE CORRUPTION AND ECONOMIC CRIMES DIVISION AT DAR-ES-SALAAM MISC. ECONOMIC CRIMES APPL. CASE NO. 14 OF 2018 (Originating from Economic Crime Case No.43/2017ofKisutu Resident Magistrate's court) MOHAMED YAHAYA MOHAMED @ LAIZER..............APPLICANT Versus THE REPUBLIC....................................................RESPONDENT

RULING Date o f last order26/3/2018 Date o f Ruling 11/4/2018 MATOGOLO, J. Mohamed Yahaya Mohamed @ Laizer, the applicant has filed this application through his advocate Mr. Josephat Sayi Mabula in which he prays to this Court to grant him bail pending completion of committal proceedings and the trial of economic crime case No.43 of 2017. He also pray for reasonable bail conditions. The application is by chamber summons made under Section 29(4) (d) and Section 36(1) of the Economic and Organized Crime Control Act, Cap.200 R.E. 2002(The Act). It is accompanied with an affidavit deponed by Josephat Sayi Mabula applicant's advocate. The chamber summons and an affidavit were served to the respondent who filed counter affidavit taken i by Elizabeth Mkunde State Attorney. But also the DPP filed a certificate under Section 36(2) of the Act certifying that the applicant should not be granted bail on the ground that the safety and interest of the Republic will be prejudiced. On 26/3/2018 the matter came for hearing. The applicant was represented by Mr. Josephat Sayi Mabula learned advocate, and M/s Elizabeth Mkunde learned State Attorney appeared for the Republic/respondent. M/s Elizabeth Mkunde addressed the Court regarding the filedcertificate by the DPP. She said the DPP has filed the certificate under Section 36(2) of the Act certifying that the applicant Mohamed Yahaya Mohamed @

Laizer, who is the accused in economic case No.43/2017, should not be granted bail because the safety and interest of the Republic will be prejudiced. She prayed the Court to take this certificate as valid one and complied with the validity test as set in DPP vs. Li Ling Ling, criminal Appeal No. 508/2015 CAT, in which the case of DPP Vs. Ally Nur Dirie (1988) TLR 152 was cited. In this case three conditions were set which are to be met in order the DPP certificate to be valid. She mentioned them to be:- (1) The DPP must certify in writing. (2) The certificate must be to the effect that the safety or interest of the United Republic are likely to be prejudiced; and (3) The certificate must relate to a criminal case either pending trial or pending appeal. The learned State Attorney submitted that these conditions were met in the certificate in question. To emphasize her point she also cited the case 2 of Emmanuel Simforian Massawe v. R. Criminal Appeal No.252 of 2016, in which the three conditions were discussed and added one that the DPP certificate will only be invalid if it is proved that the DPP acted in bad faith or in abuse of Court process. M/s Mkunde said, they are of a view that the filed certificate has complied will all legal Criteria and prayed to this Court to recognize it and act upon it. The learned State Attorney further referred to other cases decided by this

Court in regard to the DPP certificate. These include Faith Godfrey Muzo and Another v.R. Miscellaneous Economic case No. 13/2017 and Abdallah Mohamed Ndalanga and Another Vs. Republic, Miscellaneous Economic cause No. 12/2017, and asked this Court to be guided by the principles set in those cases and that it should not proceed to hear the application and grant bail. On his part Mr. Josephat Mabula learned Advocate submitted first that they were served with counter-affidavit and the certificate which were filed on 21/3/2018 that morning just after enter into the judge's chamber. He questioned as to why they were not served early. The learned advocate linked this delay to serve them with bad faith on part of the DPP because of his (DPP) failure to certify how the safety and public interest are likely to be affected if the applicant is released on bail. The learned advocate also argued at length on the two words used in the DPP certificate that is "certify" and "public interest" He said the meaning of those words as derived from the Black's Law Dictionary 9th Edition at page 258, "certify" means to authenticate or verify in writing. He therefore said the DPP must "authenticate" and must "verify". Further he said the same dictionary define the word authenticate to mean prove the genuiness of a 3 thing. As to "verify" the same is defined to mean to prove to be true to confirm or

establish the truth or truthness or to authenticate. To confirm or substantiate by oath or affidavit, to swear to the truth of. Mr. Josephat Mabula argued that the certificate in question lack authentication as per Black's law dictionary for purpose of explaining to this Court and for the Court to be satisfied that what is alleged to be affected by the applicant will actually be affected if he will be granted bail. To him, he believe the DPP certificate did not conform to the conditions as legal requirement. He said there was no reason for the DPP to hide the certificate. He referred decision of this Court in Anthonia Zacharia Wambura & Another Vs. Rep. Misc. Economic Cause No.1/2018 at Mwanza in which the case of MT 80186 PTE Henry Mwisongo v. Rep. criminal Application No. 19/2008 H/C DSM was referred in which this Court warned the tendency of the DPP hiding certificates. That this was aimed to refuse bail to the applicant. Mr. Josephat Mabula learned Advocate submitted further that the applicant has inherent right to bail, the right which cannot be simply denied. Any fear by the DPP should not accepted by this Court as the offence levelled against the applicant are mere allegations until when proved, the applicant will remain a suspect who cannot be denied bail. On the word public interest, the learned advocate argued that the word is defined to mean "the general welfare of

the public that warrants recognition and protection". He said, that word was also defined by the Court of Appeal of Tanzania in the case of The Attorney General Vs. Sisi Enterprises Ltd., civil Appeal No.30/2004(unreported) in which while citing Stroud's judicial Dictionary 5th Edn Vol.43 held: "Is that in which a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected." He said after citing other decided cases, the Court of Appeal concluded that public interest must include the purpose, an aim or object in which the general interest of the community is concerned or involved as opposed to the particular interest of individual or institutions. Mr. Mabula said in order for the DPP to deny bail on the basis of public safety and interest he must certify special requirements as to why the accused should not be granted bail on the basis of public safety and interest. The learned advocate further cited the case of Kukutia Ole Pumbun & Another V. A.G. (1993) TLR 159, which was quoted with approval in the case of AG. Vs. Jeremiah Mtobesya Civil Appeal No.65/2016, in which the Court held in order for the law to deny bail, the law itself must be lawful and have adequate safeguard against arbitrariness and abuse of Court processes and must conform to the principle of proportionality. But for Section 36(2) of the Act, the

circumstances giving powers to the DPP are too wide. As a human being like other human beings the DPP may error. It is that human error by the DPP can deny bail to the accused. He may invoke these powers arbitrarily without even considering accused right to be out on bail and continue to attend his case in that the DPP himself is a party to the case. But he appears to have immense powers over and above the powers of the Court. He said Section 36(2) provides procedure for the DPP to fix a certificate in Court. But the same provision does not provide for the procedure to be followed by Courts to determine validity of that certificate. 5 Even the accused, there is no procedure for him to address the Court on the certificate. Mr. Mabula learned advocate further submitted that Section 36(2) of the Act, is in parimateria with Section 148(4) of the CPA, the former provision is not required to remain there to deny bail to accused. Section 36(2) is therefore not a good law to curtail bail to accused persons, similar to Section 148(4) of the CPA. That after the decision is Jeremiah Mtobesya case, the provision is a wrong forum for the DPP to continue curtailing bail to accused. The learned advocate insisted that the DPP certificate lack legal force under the principle of parimateria. He said according to the decision in Director of Public prosecutions V. Daudi Pete [1993] TLR 22, the DPP

certificate would be valid if the denial of bail is aimed only if the accused is capable of being in danger or threat to the interest of the defence, public safety or public order. But for the present applicant those circumstance do not exist. He therefore prayed to the Court not to deny bail to the applicant basing on the DPP certificate because it has failed to safeguard against arbitrariness of the DPP. That the DPP in his act was not guided by the principles laid under Section 8 of the National Prosecutions services Act, No. 10/2008. Likewise Section 90(4) of the CPA. Mr. Josephat Sayi Mabula learned advocate is of the view that by the nature of the offence the applicant stands charged there is no in any way affected the safety and interest of the Republic for him to be denied bail. The learned counsel prayed to the Court to control the DPP'S misuse of powers under both Section 90(1) of the CPA and Section 8 of the NPS Act. Mr. Josephat Sayi Mabula attacked the learned State Attorney for relying of the decisions of the Court of Appeal in Ally Nur Dirie case and Li Ling Ling 6 case to deny the applicant bail but those decisions have no legal force because of the principle of parimateria after the decision in Jeremiah Mtobesya case. He said the decision in Emmanuel Simforian Massawe (supra) lack legal force on that principle. The same is distinguishable. On the other cited

cases by the learned State Attorney Mr. Mabula said she did not mention which principle relied upon, so it was difficult for him to comment on. The learned advocate said he is aware of the currently going on debate on the two decisions of the Court of Appeal in Jeremiah Mtobesya case and Emmanuel Masawe case, but the latter case is distinguishable to Jeremiah Mtobesya case although it was a constitutional petition, but the issue of constitutionality would not have arisen if it would not be bail, and the decision is of the full bench unlike in Emmanuel Simforian Massawe case. Mr. Josephat Mabula, learned advocate concluded by asking this Court to strike out the certificate in question. In her rejoinder M/s Elizabeth Mkunde, learned State Attorney, did not say much. Basically she maintained her earlier position. But she rejoined to some of the pointed out issues and rejoined generally. On the delay to serve them the counter-affidavit and DPP's certificate, she said the learned advocate has related it with bad faith on part of the DPP. But she said, had the learned advocate found that the time was not enough for him, he would have sought adjournment so that he would prepare himself. In regard to the definition of the word "Public safety and interest" and lack of authentication or certification. She said the learned advocate did not state how the said certificate lack validity. She

said issuing of certificate is guided by Section 36(2) of the Act which provides that the DPP has to certify in writing stating that the safety and interest of the Republic are likely to be prejudiced. The learned advocate did not explain how the issued certificate did not meet the legal requirements. She said they believe the same have met the legal requirements. The learned advocate has cited cases on public interest, but she said those cases are distinguishable. The law, that is Section 36(2) of the Act, does not require the DPP to give reason as to what safety and public interests likely to be prejudiced. She said the learned advocate adopted the definition of public interest as given in DPP vs. Sisi, the case which was not addressing the current situation with regard to Section 36(2) of the Act, on bail. That case was on land dispute and the disputed land was for public purpose so she said the definition on that case cannot be applied in economic cases which has specific provisions guiding grant of bail. As to the cited case of Kukutia Pumbun and Jeremiah Mtobesya case, on bail and conclusion of arbitrariness on part of the DPP, the learned State Attorney first said those cases were about Section 148(4) of the CPA unlike this case in which the discussion is on Section 36(2) of the Act. That the learned advocate did not bring any evidence relating to arbitrariness of the

DPP. In regard to the powers of the DPP, the learned State attorney said, the powers of the DPP are different to the powers of this Court. The powers of the DPP emanate from the constitution, the National Prosecutions Services Act, and the CPA. She said if the learned advocate has problems with the powers of the DPP, he has to go to the proper forum to question them. Regarding Section 36(2) of the Act failure to provide procedure for Courts to determine DPP certificate validity, she said the provision is very clear. But 8 Courts have been making law and the economic and organized crime control Act has developed basing also on Court decisions, she pointed out decisions in Ally Nur Dirie and Li Ling Ling cases had made law on the validity of DPP certificate. So this Court has powers to question the DPP certificate. The learned State Attorney disagreed with her adversary, the learned advocate that the DPP has emance powers over and above powers of the Court to determine the DPP certificate validity. On the resemblance of Section 148(4) of the CPA and Section 36(2) of the Act, and the principle of pari materia. She said this has been discussed in several cases include Abdallah Mohamed Ndalanga case and Faith Godfrey Muzo & Another. The learned State Attorney prayed to this Court to be guided by the decisions of the cases cited above and should not proceed to hear the bail

application on the mentioned three principles under Section 8 of the NPS Act. The learned State Attorney believed that the certificate in question was issued by the DPP basing on those three principles. Section 36(2) of the Act gives powers to the DPP to issue certificate denying bail where he sees that the safety and interests of the Republic are likely to be prejudiced. But she said the learned advocate did not explain how the DPP violated the three principles mentioned under Section 8 of the NPS, the learned State Attorney distinguished Mehboob case because the certificate was filed on the date of ruling which is not the circumstances of this case. She said the Court of Appeal laid three conditions for DPP certificate validity, so it has powers to question its validity. The DPP is also tasked with obligation to look at the need to do justice, the need to prevent abuse of legal process and the need to oversee the public interest, it is under these obligation, the DPP is empowered under Section 36(2) of the Act to prevent grant of bail. That 9 after the DPP has issued a certificate, it is the Court which determine its validity. Even applicants have right to question on the DPP certificate. On the issue of abuse of legal process, the learned State Attorney said the learned advocate, did not explain how in this case the Court process was abused. The learned State Attorney

submitted that the DPP's act to file a certificate is not abuse of legal process and not a proof of bad faith she said the learned advocate distinguished decision in Emmanuel Massawe to that of Jeremiah Mtobesya. But she said Mtobesya case was challenging constitutionality of Section 148(4) of the CPA. And the Court has no jurisdiction to declare that section unconstitutional. That case has legal effect only to Section 148(4) of the CPA and if the advocate wants Section 36(2) of the Act also to be declared unconstitutional the same procedure has to be adhered to. She said this court is bound by the decision of the Court of Appeal. He said the case of Emmanuel Massawe is in all fours to Section 36(2) of the Act. The learned State Attorney asked this Court to see to it that the validity test was met in this case such that this Court cannot continue and grant bail to the applicant. Those are rival submissions by the parties, in this case, that is the applicants advocate, Mr. Josephat Mabula, and M/s Elizabeth Mkunde learned State Attorney. Admittedly the offence which applicant is charged are bailable offences. It is not also disputed that the DPP has filed a certificate to this Court certifying that the safety and interests of the Republic are likely to be rejudiced. 10 But it is that certificate which is sought to be impugned. There are arguments by Mr. Josephat Mabula learned

advocate for the applicants that the said certificate did not pass the validity test and thus need not to be accorded any weight. But the learned advocate also appeared to challenge the provision which empowers the DPP to issue the said certificate. That the same is too wide without limitation. With due respect to the learned advocate; I think this is not the proper forum for addressing such argument. He can do so only before a constitutional Court. But the matter before this court is bail application. I have keenly heard both Mr. Josephat Mabula advocate in his long submission arguing against the DPP's certificate and his endeavor to persuade this Court to find the certificate invalid and thus proceed to hear the application and grant bail to the Applicant. Likewise I have heard what M/s Elizabeth Mkunde learned State Attorney has submitted defending the said certificate. I have gone through all cited cases against and in support of the said certificate. In Jeremiah Mtobesya case the court of Appeal was discussing Section 148(4) of the CPA and at the end agreed with the decision of the High Court which sitted as a constitutional Court and declared the provision unconstitutional. Although that provision, Section 148(4) is in pari materia with Section 36(2) of the Act now under consideration, the Court did not declare it also unconstitutional it left to the legislature to take

necessary steps. But again the same Court was called up on to discuss Section 36(2) of the Act, and declare it unconstitutional as did in Jeremiah Mtobesya case. But this time, the Court did not so declare the provision as unconstitutional nor did the Court invoked the Principle of statutes in pari materia. The reason it gave is that the case is of a criminal nature unlike in Jeremiah Mtobesya which was a constitution petition. li This is none than the case of Emmanuel Simforian Massawe v.R., (Supra). Although Mr. Josephat Mabula learned advocate asked this Court to follow its previous decision, in Anthonia Zacharia Wambura & Another v. Rep. (supra) but the circumstances of that case was not similar to the case at hand. Again this Court cannot follow the decision in Jeremiah Mtobesya. The reason is obvious and was succinctly given in Emmanuel Simforian Massawe case. The learned advocate also alleged that in issuing the said certificate the DPP acted in bad faith likewise the respondent's delay to serve them. But unfortunately there is no evidence availed o this Court to prove those allegations. In the said certificate, the DPP has certified that Mohamed Yahaya Mohamed @ Laizer who is accused person in the above mentioned economic case should not be granted bail on the ground that the safety and interest of the Republic will be prejudiced. This is what the DPP is

legally required to certify as provided under Section 36(2) of the Act. And these are the conditions which must be met by the DPP in preparing the certificate. In Ally Nur Dirie Case the propounded three conditions are that: 1. The DPP must certify in writing 2. The certificate must be to the effect that the safety or interest of the United Republic are likely to be prejudiced by granting bail in a case; and 3. The certificate must relate to a criminal case either pending trial on pending appeal. The DPP certificate under consideration has met all those conditions and thus it is valid one. 12 Section 36(3) is very clear that once the certificate is filed in Court it takes effect from the date it was filed until the proceedings concerned are concluded or where the DPP withdraw it. The Court therefore cannot disregard it provided that it met the validity test. I do not see good argument by Mr. Josephat Mabula learned advocate faulting the certificate in question. This Court cannot go further to inquire on the certificate apart from looking at it if has met the validity test, and to require the DPP to give reasons how the applicant is going to affect the safety and interest of the Republic. This is not one of the legal requirements for the DPP's certificate to be valid. Regarding delay to be served with Counter-affidavit and certificate, which is also linked with bad faith. This

argument lack merit. Had the learned advocate found time was not enough for him to prepare for hearing, as was rightly submitted by the learned State Attorney he would have simply asked for adjournment so that he would get time for preparation. The learned advocate for the applicant has submitted at length in relation to bad faith on part of the DPP including failure to be guided by Section 8 of the National prosecutions services Act, Likewise Section 90(4) of the CPA and what was decided on several Court decisions including Daudi Pete, Kukutia Ole Pumbun, The Attorney General Vs. Sisi Enterprises Ltd, on bail application. But all what the learned advocate has submitted in an attempt to persuade this Court to decide against the certificate is not meritous for lack of proof. But provided that there is a certificate filed by the DPP under Section 36(2) of the Act, stating that the safety and interests of the Republic are 13 likely to be prejudiced if the applicant is granted bail, and as far as this Court has found the said certificate valid after met the validity test. This Court therefore cannot disregard the said certificate and continue with hearing of the bail application for purpose of granting bail to the applicants or otherwise. The application is hereby struck out. Order accordingly. 11/4/2018 Date: 11/ 4/2018 Coram: Hon. F.N. Matogolo, J. For Applicant: Mr. Josephat Mabula Advocate Applicant: Present Respondent: M/s Tuli Helela - State Attorney B/Clerk: M. Lukindo M/s Tuli Helea - State Attorney My Lord I appear for the respondent/Republic Mr. Josephat Mabula advocate My Lord I appear for the applicant. M/s Tuli Helela State Attorney My Lord the case is for ruling we are ready. 14 Court: Ruling delivered. 11/4/2018